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HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES JUNE 2020

The following are summaries of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2020, Issue 2).

*New*
Please note that we have expanded our coverage to include cases from the Northwest Territories, Alberta, Nova Scotia, New Brunswick, Newfoundland, PEI, Québec and the federal Canadian Human Rights Tribunal.

This issue of our digest covers decisions from the Human Rights Tribunals of British Colombia, Ontario, the Maritime provinces, Alberta, the Northwest Territories and the Canadian Human Rights Tribunal that were rendered during the month of June 2020. Any relevant Supreme Court of Canada decisions from that month have also been included. 

This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project: Valeria Kuri (MSW/JD Candidate, 2021), Nadia Shivratan (JD Candidate, 2022), Deborah Willoughby (MSW/JD Candidate, 2021), and Samantha Rouble (JD Candidate, 2022).

ONTARIO

Lambourn v 2471506 Ontario Inc., 2020 HRTO 526
Date Issued: June 16, 2020
Access Full Decision Here

This decision involved an Application alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, RSO 1990, c H19, as amended(the “Code”). The Application named two respondents, Ms. Clemens was the applicant’s manager, and Mr. Singh, the individual who decided to terminate the applicant’s employment. The applicant, Ms. Alissa Lambourn, was an employee at Mr. Singh’s restaurant at a gas station located in Wyoming, Ontario from April to June 2018. During the course of her employment, Ms. Lambourn called in sick for several days in June 2018 due to the nature of her disability and provided a medical note to Ms. Clemens for her absences. Ms. Clemens refused to schedule her for shifts, effectively terminating Ms. Lambourn’s employment. Since the restaurant was owned by the numbered company and, therefore, employed Mr. Singh and Ms. Clemens, the Tribunal found the restaurant liable for its employee’s actions. The respondents in this case did not provide or file any documents or witness statements, while the applicant testified on her own behalf, and also called her mother, Cindy Lambourn as a witness.

The applicant testified that she had a history of mental illness and substance abuse and had been accommodated by the original manager who was subsequently replaced by Ms. Clemens in mid-June 2018. The applicant testified that in June, she had been struggling with her mental health after the loss of a friend and contacted Ms. Clemens on June 12, 2018, and the morning of June 13, 2018, indicating that she would not be able to come in for her shift on June 13. Ms. Lambourn was told to get a doctor’s note for her absence and alleges Ms. Clemens was upset with her upon receiving it. The applicant went to the emergency room at a local hospital on June 16, 2018 and provided a doctor’s note for her absence from work for June13-15, 2018 to Ms. Clemens. The applicant testified that she contacted Ms. Clemens the following day and indicated she was able to return to work but was told that the employer had hired new staff because of Ms. Lambourn’s absences. When Ms. Lambourn responded that this was unfair and that she was going to go to the Human Rights Tribunal, the respondent allegedly responded with a text message, saying “Good luck LOL”. Although no copies of the text messages were provided as evidence, her mother, Cindy Lambourn testified that she had seen the alleged text message.

The Tribunal accepted the Ms. Lambourn’s evidence and version of the events, while the respondents only testified as to incidents that were not addressed in the Response and indicated that they knew nothing of the applicant’s medical absences. The Tribunal accepted the applicant’s evidence proving that she had a disability, that she communicated this to her manager, and that her employment was terminated because she took a disability-related sick leave. The respondents had a duty to accommodate her disability to the point of undue hardship before terminating her employment, under either s. 11(2) or 17(2) of the Code. Given the absence of evidence from the respondents in steps taken to accommodate the applicant’s disability, the termination of the applicant’s employment was discriminatory.

In conclusion, the Tribunal ordered the respondents to pay the applicant the sum of $4,312 in compensation for lost wages from June 18, 2018, to September 2, 2018, as well as pre-payment judgement interest ($122), $15,000 in compensation for injury to dignity, feelings, and self-respect, and post-judgement interest.

Thompson v Ontario (Community and Social Services), 2020 HRTO 557
Date Issued: June 25, 2020
Access Full Decision Here

This decision involved an Application alleging discrimination in goods, services and/or facilities on the basis of disability. The applicant, Ms. Lisa Thompson, claims that the respondents, the Ministry of Community and Social Services (the “Ministry”) and Gordon Spolijarich, discriminated against her in the provision of services through the Ontario Disability Support Program (“ODSP”) over an extended period of time. Ms. Thompson is a recipient of ODSP benefits from the Ministry and has serious and ongoing health issues that require a significant amount of funding. Furthermore, Ms. Thompson alleged that she had been significantly and adversely impacted by the imposition of third party billing, the delivery of unnecessary quantities of supplies, the lack of acknowledgement of her special circumstances, and the lack of reimbursements for certain expenses (not to mention the hostile and discriminatory nature of the employee’s conduct alleged by the applicant). The issue present in this case was the ongoing nature of the alleged discrimination claimed by the applicant. Ms. Thompson asserted that the discrimination occurred over a long period of time through attitudinal barriers and/or denial of service from 2009, and continued to the present day, although she did not provide a detailed chronology of events. According to s.34 of the Code, if a person believes that their rights have been infringed, or that they have been discriminated against, they have one year after the incident to file an application, or, if there was a series of incidents, one year after the last incident occurred. The applicant did not deny that various incidents occurred prior to June 1, 2016, but states that there was no issue with respect to the timing of the application since the alleged discrimination occurred over a long period of time and was ongoing.  However, the respondents requested dismissal of the allegations which pertained to incidents that occurred prior to June 1, 2016, stating that responding to allegations that occurred ten years ago would be a significant hurdle for the respondents.

The Applicant was unable to provide insight or demonstrate why she could not meet the required deadline and that the delay in filing the Application occurred in good faith under s. 34 of the Code. However, the Tribunal also recognized the claims of ongoing discrimination maintained by Ms. Thompson. Therefore, the Tribunal struck all allegations relating to matters occurring prior to June 1, 2016, from the Application and concluded that allegations of discrimination that occurred after June 1, 2016, would proceed through the Tribunal process.

BRITISH COLUMBIA:

Parker v. Our Social Fabric, 2020 BCHRT 128
Date Issued: June 5, 2020
Access Full Decision Here

Helen Parker alleged discrimination by the volunteer-run non-profit textile recycling company, Our Social Fabric (“OSF”). Ms. Parker believed that her disabilities were a factor in the company denying her a volunteer opportunity, contrary to s. 13 of the Human Rights Code, RSBC 1996, c 210 (“Code”). OSF denied any discrimination and stated that the organization was run by volunteers who “were doing their best.” The organization stated that they offered multiple shifts to Ms. Parker who turned them down and that the lags in communication were due to oversight as opposed to discrimination. The OSF applied to the Human Rights Tribunal to dismiss the complaint on the grounds that Ms. Parker has no reasonable prospect of proving that she was adversely impacted in connection with employment according to s. 27(1)(c) of the Code.

Ms. Parker had disabilities that enable her to receive disability benefits from the provincial government. She was unable to work full time and she usually had “three ‘usable’ hours outside the home every day.” Ms. Parker was participating in a Community Volunteer Supplement Program in 2018 where she was eligible to receive a monthly income supplement if she volunteered with a non-profit organization for at least eight hours per month. Ms. Parker had an interest in sewing and reached out to OSF. The organization offered Ms. Parker eight hours per month and provided her with dates and time blocks where she could volunteer. After multiple back and forth communications, Ms. Parker disclosed that she was on provincial disability and was participating in the Community Volunteer Program, to which OSF stated that they were a small organization with limited hours of operations and volunteer positions. OSF then referred Ms. Parker to another organization that assisted adults with employment barriers including disabilities.

Ms. Parker found another volunteer placement to satisfy her requirements for the Community Volunteer Supplement Program, but she was still interested in volunteering at OSF. She sent a follow-up request with the organization about volunteering and OSF responded asking about her availability on a specific date. When Ms. Parker responded and explained she was not available to work on weekends but provided an alternative, OSF never responded. The organization never responded to another follow-up email Ms. Parker sent. Ultimately, Ms. Parker sent a formal letter to the Board stating the history of communications with OSF and the response she received once she disclosed her disability. The Board responded and offered an apology to Ms. Parker and wanted to have a telephone discussion “to understand the situation more in-depth.” When Ms. Parker offered to do so over an in-person meeting, the Board sought legal advice and based on the advice of its legal counsel, the Board did not respond any further to Ms. Parker.

Ultimately, the Tribunal denied the application to dismiss the complaint. The Tribunal found that the change in tone of communications between OSF and Ms. Parker and their referral to a disability organization supported the inference that Ms. Parker’s disability was a factor in OSF’s failure to follow up about volunteer shifts. Moreover, the volunteers that were directly involved failed to provide direct evidence in support of OSF’s argument that their failure to respond to Ms. Parker was due to simple oversight. The Tribunal was not persuaded that Ms. Parker had no reasonable prospect of proving that her disabilities were one factor in OSF’s conduct and a two-day hearing was to be scheduled.

Tumber v. Flexi Force Canada and another, 2020 BCHRT 132
Date Issued: June 26, 2020
Access Full Decision Here

Sukhjinder Tumber filed a complaint against his employer at the time, FlexiForce Canada Inc. (“Flexiforce”) and the Human Resource Manager, Terry Eady, alleging discrimination in his employment as they failed to accommodate his physical disability, contrary to s. 13 of the Human Rights Code, RSBC 1996, c 210 (“Code”). Flexiforce was a business that dealt with the manufacturing of vinyl window frames and overhead door hardware. Mr. Tumber went on medical leave, and upon his return, the Respondents failed to assign him to his pre-injury duties and refused to allow him to work afternoon shifts. The Respondents denied discriminating against Mr. Tumber and applied to dismiss the complaint based on ss. 27(1)(c), (d)(ii), and (e) of the Code: “on the basis that the Complaint has no reasonable prospect of success, it would not further the purposes of the Code to proceed with the Complaint because there has been a remedy for the conduct complained about, the Complaint is against the institutional or corporate Respondent who is responsible for the individuals’ conduct, and the Complaint was filed for improper motives or was made in bad faith.”

Mr. Tumber worked as a labourer in the Plastics Department where the work was described as “essentially the lightest work available” by the Respondents. Mr. Tumber took a leave of absence from work for medical reasons and was eventually allowed to return to work in accordance with recommendations from an Occupational Therapist. He eventually went off work due to physical injuries and when he was ready to return to work on light duties, the Respondents advised Mr. Tumber that they could not accommodate a return to work with the information available to them at that time(even after Mr. Tumber provided the Respondents with an Occupational Fitness Assessment to determine his accommodation needs.) The Tribunal found that Mr. Tumber provided support for “what could amount to a preliminary case of discrimination on the basis of physical disability” based on the Moore criteria. It was not disputed that Mr. Tumber had a history of disability-related absences from his workplace and that he had physical difficulties performing his tasks in the Plastics Department. The burden shifted to the Respondents to justify their conduct when they required further medical confirmation of Mr. Tumber before he could return to work as a bona fide occupational requirement.

The Tribunal found that the Respondent’s requirements for further medical information was done in good faith and “rationally connected to the function being performed.” It has generally been accepted that in order to assess an employee’s fitness for work, medical information may be sought and if there are prior issues of fitness for work duties, an Assessment may be sought. The evidence was consistent with the Respondents having behaved in good faith in attempting to establish the abilities, limitations and necessary accommodations of Mr. Tumber. Additionally, since Mr. Tumber had complained in the past about the negative impact his regular duties were having on his physical health, it was reasonable that Flexiforce required Mr. Tumber to participate in an Assessment. Ultimately, the Tribunal granted the application to dismiss the complaint under s. 27(1)(c) of the Code in that there was no reasonable prospect of success.

ALBERTA

De La Cuesta v Horton CBI, Limited, 2020 AHRC 44
Date Issued: June 2, 2020
Access Full Decision Here

The applicant, Ivan De Law Cuesta, alleged discrimination in employment on the ground of physical disability in contravention of section 7 of the Alberta Human Rights Act. In early November, the complainant began to experience symptoms of a progressive injury to both hands. He did not inform the respondent of these symptoms at that time. Each workday, the complainant signed daily attendance forms confirming that he was fully fit for his employment duties. The respondent later assigned the complainant a new supervisor, who was not aware of the applicant’s injury or symptoms as they progressed. The applicant did not inform his supervisor due to their poor relationship. In December, the complainant’s physician diagnosed him with a progressive condition in both hands and completed workers’ compensation forms for the complainant, which recommended modified duties. The complainant alleged that the superintendent accused him of lying about the injury and threatened to terminate his employment.

The Tribunal held that the information supported the argument that the respondent followed their own policy process when presented with medical information. The respondent immediately arranged for a medical assessment, which the complainant attended, and offered modified work duties until the date of his next medical assessment. The Tribunal further held that the information supported that the respondent was prepared to accommodate the complainant’s disability. The Director’s decision to dismiss the Complaint was upheld.

A.D. v Alberta Health Services, 2020 AHRC 49
Date Issued: June 16, 2020
Access Full Decision Here

The complainant alleged that the respondent discriminated in the area of services on the grounds of mental disability and gender in contravention of section 4 of the Alberta Human Rights Act. The complainant identifies as a person who has a history of mental illness, including Bipolar Disorder and Post Traumatic Stress Disorder (PTSD). The Complaint involved the events surrounding the complainant’s admission for mental health treatment on two occasions at the Centennial Centre for Mental Health and Brain Injury in Ponoka. The complainant alleged that the way she was treated during each admission violated her rights and dignity as a woman and as a person with a disability. The complainant more specifically alleged that she was placed in a seclusion room and administered medication without her consent; she was not informed why the treatment was being administered; on each admission, she was not provided access to toilet facilities, including a commode, and as a result, urinated and defecated on the floor of the seclusion room; she was not provided with any toilet paper, and as a result had to use a blanket to clean herself; she was not provided with a bed or mattress, and as a result had to sleep on a concrete floor with only blankets; and on the second admission prior to being placed in the seclusion room, she was forcibly undressed by male staff and dressed in pyjamas. One of the male staff opened the front of her underwear and commented that she “had pubic hair.” The complainant also alleged that she had subsequently raised the above allegations with a number of staff members.

The Tribunal found that a comment by the respondent’s staff that is intended to humiliate or make fun of the complainant’s disability or had the effect of humiliating the complainant, as a person with a disability, can arguably form the basis of a human right violation. Further, the allegations put forward by the complainant, if true, amounted to serious affronts to the complainant’s dignity and self-worth and were not about mere “poor treatment” by the Centennial Centre. The Tribunal was not prepared to dismiss the Complaint on the basis that the complainant’s allegations amounted to simple dissatisfaction about the services she received as a patient of the respondent. Further, there was a reasonable basis in the information to proceed to a hearing. The Director’s decision to dismiss the Complaint was overturned.

NWT

There are no relevant decisions for this month.

CANADIAN HUMAN RIGHTS TRIBUNAL

There are no relevant decisions for this month.

HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES MAY 2020

The following is a summary of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2020, Issue 1).

*New* Please note that we have expanded our coverage to include cases from the Northwest Territories, Alberta, Québec and the federal Canadian Human Rights Tribunal.

This issue of our digest covers decisions from the Human Rights Tribunals of British Colombia, Ontario, the Maritime provinces, Alberta, the Northwest Territories and the Canadian Human Rights Tribunal that were rendered during the month of May, 2020. Any relevant Supreme Court of Canada decisions from that month have also been included. 

This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project: Valeria Kuri (MSW/JD Candidate, 2021), Nadia Shivratan (JD Candidate, 2022), Deborah Willoughby (MSW/JD Candidate, 2021), and Samantha Rouble (JD Candidate, 2022).

ONTARIO

Elsobky v Footletic Inc., 2020 HRTO 423
May 20, 2020
Access Full Decision Here

This decision involves an Application alleging discrimination and reprisal in employment because of disability, sex, marital status, and age contrary to the Human Rights Code, RSO 1990, c H19 (the “Code”). Specifically, the applicant, Mahmoud Elsobky, alleged the respondent failed to accommodate his disability after a workplace injury that occurred in October 2018. Following the injury, the applicant filed a complaint with the Workplace Safety Insurance Board (“WSIB”). The respondent requested an early dismissal of this Application on the basis that the WSIB decision had appropriately dealt with the substance of the matter, as per s. 45.1 of the Code.

The issue before the WSIB was whether the applicant suffered a work-related injury and whether it was a compensable injury. The WSIB Case Manager issued a decision in which it determined that it was unable to conclude that a workplace accident occurred, or that the applicant’s injuries were work-related due to the delays in the applicant reporting his injuries to the employer, his doctor and to the WSIB.

The Tribunal concluded that the WSIB decision had not adequately dealt with the substance of the Application because it did not address the failure to accommodate the applicant’s disabilities by the respondent and denied the respondent’s request to dismiss the Application.

BRITISH COLUMBIA

The Candidate v. Ernst & Young LLP, 2020 BCHRT 119
May 22, 2020
Access Full Decision Here:

This decision involves an applicant who had applied for a job at Ernst and Young LLP (EY) but was ultimately unsuccessful in obtaining employment. He alleged that he was denied the job by EY once they learned that he had a mental illness, in violation of the Human Rights Code s. 13. By contrast, EY stated that their decision not to hire the Candidate was based on other reasons and that they did not know about the Candidate’s mental illness when making the decision not to offer him the job.

The Candidate applied for an order to limit the publication of any identifying information in these proceedings, whereas EY opposed the application stating that the Candidate had not established the grounds for this order. It is at the discretion of the Tribunal to limit what information is available to the public, particularly where a person’s privacy interests outweigh the public interest in having access to the proceedings according to Rules of Practice and Procedure, Rule 5(4). In this case, the Candidate had the burden to establish that his privacy interest outweighed the public interest of having open access to the court proceedings and the Candidate would have had to present strong grounds for this order. 

The Candidate argued that his mental health is inherently private and publishing identifying information may expose him to stereotypes and stigma, compromise his future job and personal prospects, and could have adverse effects on his mental health. Additionally, the Candidate was employed within a government institution in a leadership position. If his personal details relating to this complaint were published, it could have harmed his reputation in his employment.

The Tribunal gave weight to the Candidate’s mental illness and the desire to keep those details private and granted the order limiting publication of certain information up until the hearing of this complaint. As well, the complaint was at a preliminary stage, therefore, there was a greater scope for limiting public access at the early stage. The order limiting publication of identifying information would minimally impair the openness of the proceeding as it only relates to a small portion of the overall case.

Fernandes v. City University of Seattle in Canada and another (No. 2), 2020 BCHRT 116
May 21, 2020
Access Full Decision Here.

Edmir Fernandes was a student in a graduate counselling program at the City University of Seattle in Canada (“University”), however, he left the program after the first term. He said that he was dismissed from the program by a University director on the grounds of his place of origin, sexual orientation, sex and mental disability, contrary to s. 8 of the British Columbia Human Rights Code [Code]. The Respondents said that the University gave Mr. Fernandes two options on how to move forward in the program after negative feedback of Mr. Fernandes came to light. He was to either withdraw from the program and receive a full refund or temporarily leave and return with a medical assessment. The Respondents said that Mr. Fernandes instead ceased communications with the university director and left the program.

In order to prove discrimination contrary to s. 8 of the Code, Mr. Fernandes must, on a balance of probabilities, establish “that he experienced an adverse impact in a service and that his sex, sexual orientation, place of origin, or mental disability were a factor in that adverse impact.” The Respondents can rebut this by establishing that they had a non-discriminatory and reasonable explanation for their conduct.

The Tribunal found that Mr. Fernandes did not have a mental disability. This was based on Mr. Fernades’ repeated denial of having a mental disability and his evidence that he was never diagnosed with a mental disability in Brazil, his country of origin, or Canada. He also participated in a psychological evaluation and there was no indication that he had a mental disability.  However, the Tribunal found that the Respondents perceived that Mr. Fernandes had a mental disability. Specifically, they believed that he had a learning disability and was mentally unstable. The Respondents acted on their perception that Mr. Fernandes had a mental disability.

The Tribunal found that Mr. Fernandes had been adversely impacted when he ceased participating in the program. In addition, the Tribunal was satisfied that, “while there were a number of factors leading to the decision to remove Mr. Fernandes from the program, the perception that he may be mentally unstable was at least one.” The Tribunal noted that the Respondents are allowed to judge Mr. Fernandes’ behaviour, however, it was unreasonable for them to conclude that Mr. Fernandes needed to be held out of school due to safety reasons, pending an assessment of his mental state. The Tribunal found that the perception of mental instability of Mr. Fernandes by the Respondents was not reasonable in the circumstances as their perceptions were “tainted by stereotype,” specifically that those perceived to have a mental illness pose a danger to others. This stereotype “profiled Mr. Fernandes as a threat for sexual violence based on preconceived ideas about his character with the effect that he was treated with suspicion, marginalized, and excluded from receiving an education.”

Mr. Fernandes established on a balance of probabilities the three elements of his case: his perceived mental disability was a characteristic protected from discrimination, that he had experienced an adverse impact in this protected area and that this protected characteristic was a factor in the adverse impact in services…

The Tribunal did not find discrimination on the grounds of Mr. Fernandes’ place of origin, sexual orientation and sex and this complaint was dismissed. The Tribunal also dismissed the part of the complaint alleging discrimination based on the Respondent’s perception that Mr. Fernandes may have a learning disability.

The Tribunal found that Mr. Fernades’ perceived mental disability was a factor in the University’s decision to remove him from the program which violates s. 8 of the Code. The Respondents were ordered to cease the contravention and refrain from committing similar or the same contravention. As well, the Tribunal ordered the Respondents to pay Mr. Fernandes for the following: expenses incurred as a result of the contravention; compensation for injury to his self-respect, feelings and dignity; and post-judgement interest on all amounts until the amount is paid in full. 

Belusic obo Canadian Federation of the Blind v. City of Victoria and another, 2020 BCHRT 115
May 20, 2020
Access Full Decision Here

A complaint by Oriano Belusic was filed on behalf of those who wish to use BC Transit in the City of Victoria [“City”], British Columbia, and those who are members of the Canadian Federation of the Blind [Class]. The Class alleged that the City discriminated against them “by relocating bus stops from the curb to the islands in the middle of the road.” The Class stated that these “Floating Stops” are unsafe for those who have visual impairments, violating s. 8 of the British Columbia Human Rights Code [Code]. Additionally, the Class alleged that in “accepting and operating its public bus service at Floating Stops that are safety accessed by crossing a bicycle lane only by those members of the public who are not blind,” BC Transit discriminated against the Class, violating s. 8(1) and (2) of the Code. As well, by Transit servicing the Floating Stops, they became a party to the City’s discrimination against the Class by denying meaningful access to their buses.

The Tribunal found that when Transit serviced the Floating Stops, they “arguably discriminated against the Class in its own right” as the stops were a barrier to those with disabilities in safely accessing bus services. The evidence suggests that Transit “contributed to the adverse impact created by the Floating Stops” and there is a clear nexus between the Class members’ disability and the inability of the Class members to access the buses at the Floating Stops. Therefore, the application to dismiss the complaint was denied as BC Transit failed to convince the Tribunal that the complaint had no reasonable prospect of success.

D.D. v. The Hotel and others, 2020 BCHRT 109
May 5, 2020
Access Full Decision Here.

The Complainant, D.D., alleged that employees, D.P. and D.Z. of the Respondent Hotel, as well as the hotel itself, discriminated against him contrary to s. 10 of the British Columbia Human Rights Code [Code], on the basis of physical disability, sexual orientation and race. D.D is of Indigenous heritage, HIV positive and bisexual. Since his HIV diagnosis in 2009, he has been receiving Persons with Disability benefits from the provincial government. He was a tenant at the hotel from 2003 to 2018. D.D. alleged that the discrimination was in the form of harassment during his tenancy at the Hotel and his eviction. As a result of the alleged harassment and eviction, D.D. stated that his mental health deteriorated, and he was diagnosed with Post Traumatic Stress Disorder (PTSD) and anxiety which required him to seek counselling. The Respondents applied to dismiss the complaint and stated that the eviction was not discriminatory but based on D.D.’s interference with other tenants and that D.D. fabricated his allegations of harassment.

Section 27(1)(b) of the Code would allow the Tribunal to dismiss a complaint the facts alleged do not contravene the Code. This determination is made on the basis of the alleged facts in the complaint and does not reference any alternative scenarios or defenses provided by the respondent. The Court established in Moore v. British Columbia, 2012 SCC 61, the requirements of a complainant to prove discrimination, known as the Moore test, by showing they “have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact.” In applying the Moore test to an analysis under s. 27(1)(b) of the Code with the examples of discrimination that D.D. provided, his allegations of discriminatory harassment and eviction could not be dismissed under s. 27(1)(b) of the Code.

The Respondents also applied to dismiss the complaint under s. 27(1)(c) of the Code. To succeed under this section, the respondent bears the burden to show there is no reasonable prospect of the compliant succeeding. In this case, credibility was foundational. The versions of events could not be reconciled. The Tribunal was unable to determine that there was no reasonable prospect of the discriminatory harassment complaint succeeding nor that there was no reasonable prospect of D.D. proving a nexus between his protected characteristics under the Code and his eviction.

In addition, the Respondents applied to dismiss the complaint under s. 27(d)(i) of the Code by which the proceeding would not benefit the complainant. The Respondents argued that any monetary damages awarded to D.D. would not benefit him since he was receiving Persons with Disability benefits and would have to turn the awarded money to the provincial government. The Tribunal declined to make a determination on this issue.

Ultimately, the Tribunal denied the Respondents’ application to dismiss the complaint and encouraged the parties to take advantage of the mediation services offered by the Tribunal. In denying the Respondents’ application, the Tribunal was not concluding that D.D.’s complaints would likely succeed, rather that, “it has surpassed the low threshold of conjecture and requires a hearing for the Tribunal to make factual findings about what actually occurred.”

ALBERTA

Lang v Nation-Wide Home Services Corp., 2020 AHRC 34
May 1, 2020
Access Full Decision Here

Daryl Lang, the complainant, filed a complaint alleging discrimination in employment on the ground of physical disability contrary to section 7(1) and section 8 of the Alberta Human Rights Act. The complainant alleged that during her interview with the respondent, she was asked inappropriate questions that addressed her visual impairment. The complainant further alleged that discrimination occurred in her employment interview when she was asked about her transportation to the workplace and whether assistive technology affected her speed. Following the interview, the complaint was informed that she had not gotten the position and that it was filled. The complainant stated that within minutes of this information, she noticed the Kijiji job advertisement had been reposted.

The Tribunal stated that it is for the complainant to demonstrate that her physical disability was a factor in her employment dealings with the respondent, yet the evidence failed in that regard. The respondent had provided a reasonable non-discriminatory explanation for the respondent’s decision not to consider the complainant’s candidacy further. With regard to the advertisement and being told that the position was filled, there was no evidence that the person who informed the complainant that the position was filled had knowledge of the complainant’s candidacy or authority to speak to the complainant in matters of hiring. The Tribunal did not find that the interview questions asked of the complainant, the respondent’s disposition of the complainant’s candidacy, or the continued advertising of the ISR position constituted human rights discrimination. Ultimately, the Tribunal held that the complainant had not satisfied the legal burden of proof to establish that she at experienced discrimination on the basis of physical disability and dismissed the Complaint. 

NWT

There are no relevant decisions for this month.

CANADIAN HUMAN RIGHTS TRIBUNAL

There are no relevant decisions for this month.  


Accessibility and the Animal Law Movement: The Disconnect

By: Deborah Willoughby

“There are only two kinds of people in society: those who have a disability now, and people with disabilities in waiting—i.e. those who will get one later.”

This quote by disability advocate David Lepofsky highlights something I never gave much thought to until I recently became injured and had my mobility compromised for a few weeks. The timing of my injury could not have been worse as it coincided with an animal law conference in another part of the country that I had the opportunity to attend. My experience with how others treated me while I used assistive devices including a cane, wheelchair and crutches while travelling and attending the conference was quite eye-opening and, to my surprise, quite disappointing, especially in settings where one would assume folks would be more compassionate and helpful. 

My trip began at the airport where I used wheelchair assistance since it would have been too tiring to navigate the airport on crutches. Although the airport staff were helpful, when we approached the gate, I experienced my first instance of exclusion: the way my wheelchair was positioned at the front of the line at the gate and away from the seating area where most of the passengers were, placed me in an awkward spot where I felt isolated. I know my experience is not unique, as other travellers with wheelchairs are often positioned in such a manner at the gate. However, this type of exclusion — social exclusion — is an unfortunate and angering reality that many people with disabilities experience. It was something I dealt with throughout my trip.

My colleague and I were staying at a hotel and on the first day of the conference,we asked the hotel staff to call a taxi to take us to the conference venue. When the taxi arrived, the driver told us that we should call another taxi as he did not want to put the foldable wheelchair in his trunk. This immediately made me feel angry and also guilty as I felt that I had placed my colleague in an awkward position. Even though I was not responsible for the taxi driver’s response, he made me feel like a burden in that moment. To exacerbate the situation, he began questioning why I was using a wheelchair when he saw that I was able to stand on one leg when I was trying to get into the car. He then had the audacity to tell me that since “I could walk,” I should ask the hotel for a walker instead of a wheelchair because it would be easier for him to put in his car. I could not believe what he was saying; who was he to tell me that I could walk just because he saw that I could stand on one leg? He did not know my level of mobility or pain. Why should I switch from an assistive device I was comfortable using in order to accommodate him?  According to the Ontario Human Right’s Commission’s policy on ableism and discrimination based on disability, service providers have a legal duty to accommodate to ensure that people with disabilities have equal access to services. However, the Ontario Human Rights Code includes certain exceptions and defences that allow behaviour that would usually be discriminatory and to use such defences and exceptions, organizations must demonstrate “that the needs of the person or group affected cannot be accommodated without undue hardship.” I believe that putting the foldable wheelchair in his car was more of an inconvenience to him than undue hardship.

This was the beginning of a quite disheartening weekend in terms of navigating around with a physical impairment. At the conference when I was using the wheelchair, I felt so invisible: people would have conversations literally right in front of me but exclude me from them. Other times when I was sitting at a desk with other students, I could not participate in the conversations amongst them as I could only stretch so far in the wheelchair and it would have been difficult for me to readjust the chair to hear them. I also felt like it would have been awkward for me to ask them to reposition themselves or speak up so I could also be included in the conversation. Instead, I sat quietly looking around and eventually went on my phone. Upon discussing this with a person with a visible disability once I returned from the conference, they explained that they had experienced, and knew other folks with disabilities who have as well, a certain attitude that suggests if you have a disability ‘it’s not worth engaging you in a conversation’.  Shockingly, I also had people physically stepping over my feet and my wheelchair while walking across an accessible seating area instead of using the clear walkway which was behind my chair and provided more than enough space to walk. By contrast, when I used crutches for the last two days of the conference, I found that people were more likely to engage with me and socialize compared to when I was in a wheelchair. Having inclusive spaces really should mean making an effort to ensure that everyone is included in every way.

Even though I experienced some shocking and unpleasant treatment while using assistive devices, most people were helpful and treated me with respect. I was also fortunate to not have people help me without my consent, such as grabbing my wheelchair. A recent hashtag “#JustAskDontGrab” has highlighted this issue where people may have the intention of helping but do not ask for consent, and instead can make persons with disabilities feel out of control of their bodies. Disability advocate Bronwyn Berg says that her “wheelchair is an extension of my body… [Having your wheelchair pushed without consent] is just a complete loss of control and it’s a very vulnerable position to be in.” The hashtag speaks to the prevalence of the problem, and not just for those who may use assistive devices.

The attitudes of the taxi driver, those stepping over me and those disengaging with me were disheartening, especially since the individuals were attendees of a conference comprised of academics, lawyers, professionals and students. Because the nature of the conference was about advocating for the voiceless, including animals in the meat industry, animals who are exploited in entertainment, experimentation, fashion, etc., one would think these folks would be more compassionate to people with disabilities, yet their actions were dehumanizing. It is interesting how some within the animal advocacy community can have such strong feelings about animal welfare and contrastingly different responses to human disability, whether their feelings or actions are unconscious or not.

Ultimately, my experience provided me with a unique perspective on navigating the world while temporarily using assistive devices and also how others perceive and react to that in certain contexts including day to day settings, professional environments and ultimately spaces within a larger movement. The experience also opened my eyes to bridges that could be better built between animal advocacy and the disability rights movement. All forms of non-human and human oppression are interlinked, therefore, in order to combat speciesism, animal advocacy will need to address human oppression and ensure that spaces within the movement are inclusive. “The animal advocacy movement may never achieve widespread change without engaging broader swaths of the population and building coalitions with other justice movements.”

HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES AUGUST AND SEPTEMBER 2019

Important and noteworthy decisions have recently been rendered from Canadian human rights tribunals relating to disability. The following are a selection of decisions from the Human Rights Tribunals in BC and Ontario that were rendered during the months of August and September 2019. Any relevant Supreme Court of Canada decisions from these months have also been included. This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project
Ebony Evans (JD Candidate, 2020), Valeria Kuri (MSW/JD Candidate, 2021), and Deborah Willoughby (MSW/JD Candidate, 2021). Edited by Research Assistant for the Law, Disability & Social Change Project Rachel Herscovici (JD Candidate, 2020).

AUGUST 2019

Ontario:

Fatima v. Trillium Health Partners, 2019 HRTO 1038

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Date Issued: July 4, 2019

The applicant alleged that the respondent discriminated against her on the basis of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant alleged that she attended Credit Valley Hospital, part of the Trillium Health Partners organization, as she was ill. She alleged that an individual respondent, Dr. Mulgund told her that in her opinion, she was fine, did not need any medication and could go home. The applicant alleged that she began to feel worse and asked to speak to Dr. Mulgund further, but Dr. Muglund refused to attend to her further. She then decided to call an ambulance to transfer her to another hospital but was told that the ambulance service does not provide transfers between hospitals.  On her way out of the hospital, she alleges that she encountered members of the respondent’s paramedic service who treated her disrespectfully. Later that day, members of the respondent’s police service apprehended the applicant and returned her to Credit Valley Hospital pursuant to a Form 9 under the Mental Health Act, R.S.O. 1990, c. M.7, as amended,issued by Dr. Mulgund. She alleges there was no basis for the Form 9 and that she was released after several hours. 

The respondent’s position was that the application should be dismissed because the applicant has since filed a civil claim which alleges the same violations of the applicant’s rights under the Code and the Canadian Charter of Rights and Freedoms on the basis of disability and creed. The Tribunal agreed and dismissed the application based on Section 34(11) of the Code which states:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

The language in this section was found to prevent two concurrent claims being brought forward regarding the exact same issue. Given the clear overlap of the applicant’s two proceedings the Application was dismissed as the civil proceeding had already been started.

Saxon v. ScrapFest Inc., 2019 HRTO 1043.

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Date Issued: July 5, 2019

The Applications, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleged discrimination with respect to goods, services and facilities because of disability.  The applicant alleged that ScrapFest Inc. (“ScrapFest”) and the Corporation of the City of Kitchener (“the City”), the respondents, discriminated against her when not all vendor/exhibitor booths at the ScrapFest held in Kitchener in 2016 and 2017 were accessible to her as a person who uses a rollator (wheeled walker).

The Tribunal dismissed the application pursuant to section 1 of the Code as the factual background revealed that although the applicant inquired multiple times about the accessibility of the event, she did not in fact attend the event and therefore did not directly experience accessibility discrimination. This case asserted that accommodation remains a two-way street. The Tribunal decided that given that the two-day ScrapFest event was about to happen in slightly over a month and the applicant had unilaterally discontinued conversations to address accessibility concerns, the organizers of the event were reasonable in the circumstances to forgo accommodations for the applicant.

MacDonald v. Workplace Safety and Insurance Board, 2019 HRTO 1091.

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Date Issued: July 23, 2019 

The applicant alleged discrimination based on his disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, he alleges that the Workplace Safety and Insurance Board (“WSIB”) infringed his human rights when the WSIB changed the narrative and nature of appealable issues and provided false information which presented his disability as having less impact on his functional abilities than he claims. The applicant also alleged that WSIB provided information that and minimized his disabilities to find that he was capable of returning to work.

The Tribunal dismissed the application based on the Tribunal’s 2012 decision of Seberras v. Workplace Safety and Insurance Board, which lays out if and when the Tribunal has jurisdiction when a challenge is made to a decision relating to benefits under a statutory scheme, such as WSIB in this case. In the decision, it was emphasized that the Tribunal is not to be used as a mechanism for appeal of other statutory decision makers. It was determined that this matter was an attempt to have the Tribunal review the decisions made in respect of his WSIB claim.  In these circumstances, the Tribunal found that it was plain and obvious that the subject matter of the Application did not fall within the Tribunal’s jurisdiction and subsequently the application was dismissed.

Guerrier v. Restaurant Brands International Inc., 2019 HRTO 1117.

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This applicant in this case alleged discrimination in employment because of race, colour, and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The applicant was a young woman who self-identified as Black and as being of mixed Caribbean, Indian and White ancestry. She also suffers from sickle cell anemia. The respondent is a large fast-food service company with more than 23,000 restaurants in more than 100 countries, including Burger King, Popeye’s and Tim Hortons restaurants. The respondent provides support and oversight to its restaurant owners, who are franchisees. The applicant was employed by the respondent on a 6-month contract as a Voice of Customer analyst, which involved her providing support to restaurant owners. The evidence indicated that circumstances began to change when the applicant started being assigned more complex tasks, as the applicant was alleged to have made errors, was not properly prioritizing tasks and appeared to be disinterested in her work. The applicant alleged that the respondent did not provide appropriate accommodations and thus she was discriminated against due to her disability when she was terminated. 


The Tribunal found no violation under the Code. The Tribunal found that the applicant had not raised her disability or concerns as reasons for all of her poor performance issues and that the respondent had offered to provide accommodation for the issues her disability posed that she did bring forward. Overall, Tribunal found the respondent had sought to resolve these performance issues by inquiring about possible issues the applicant faced and then addressing them through accommodations and coaching before dismissal, but not yet dismissal. The Tribunal found that prior to the decision to terminate the applicant, the evidence did not support the allegation that she had experienced any adverse treatment or consequence as a result of her condition or the disclosure of her condition. To conclude, the application was dismissed.

British Columbia:

Fiorenza v British Columbia Lottery Corporation, 2019 BCHRT 162

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This decision involved an application alleging that the respondents, British Columbia Lottery Corporation [BCLC], discriminated against the applicant, Ms. Fiorenza, on the basis of mental disability in employment contrary to s. 13 of the Human Rights Code, RSBC 1996, c 210. The respondents denied discriminating and sought to have the complaint dismissed: Code, s. 27(1)(c).

Ms. Fiorenza was a customer support representative employed by BCLC. Her job required her to communicate with customers over the phone, online chat, and email to resolve issues. Ms. Fiorenza has a disorder that impacted her ability to perform this job. In March 2016, BCLC granted Ms. Fiorenza’s medical leave and in August 2016, Ms. Fiorenza’s insurance company determined that she was no longer considered disabled. BCLC told her to return to work or she may be considered to have abandoned her job. Before she returned to work, Ms. Fiorenza provided a doctor’s note that recommended shorter shifts and no telephone contact to properly accommodate her as  that was the trigger of her initial panic attack. Ms. Fiorenza returned to work, where her duties were modified according to her doctor’s recommendations.

Overtime, Ms. Kainth, a human resources representative at BCLC, asked Ms. Fiorenza to provide more detailed medical information about her restrictions and limitations, prognosis, estimated full return to work date, and treatment plan. In response, Ms. Fiorenza provided another doctor’s note that she was still unable to do telephone work and it was unknown when she would be able to return to full duties; in fact, Ms. Fiorenza’s doctor said she may never be able to return to that type of work.

Around November 2016, Ms. Fiorenza applied for a BCLC accounting technician role involving analyzing financial date and preparing reports, a job for which she had previously been selected in 2014 but had turned down for health reasons. Ms. Fiorenza was ultimately not chosen for this position this time. The respondents indicated  that the department had been restructured and could no longer host someone with the applicant’s skill-set. In December 2016 and January 2017,,Ms. Fiorenza informed her team lead that she was interested in different positions but was told that the accounting technician posting that she had applied for was cancelled. Later that month the applicant alleged that her job felt in jeopardy after a distressing conversation with her supervisors about her performance. Shortly thereafter she was asked to provide further medical evidence as the respondents alleged the other notes were unclear. More documentation was provided.

The Tribunal reviewed the ongoing issues concerning the applicant seeking work that best suited her needs and the respondents refusing certain job changes and requests citing the applicant as unqualified. Overall the Tribunal found that the applicant had participated in her end the accommodation process.  And while the respondents asserted that they could prove they accommodated up to undue hardship, the Tribunal was not convinced. The Tribunal concluded it would not dismiss the applicant’s Application as the respondents had not established that it was reasonably certain that they would establish a defense at the upcoming hearing.

The Pharmacist v The Doctor and another, 2019 BCHRT 176

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A complaint was filed by a pharmacist alleging discrimination on the basis of mental disability and religion contrary to s. 8 of the BC Human Rights Code regarding accommodation, service and facility. The alleged discrimination was filed against a doctor and the College of Pharmacists of British Columbia regarding occupational associations and unions contrary to s. 14 of the BC Human Rights Code.

The complaint arose after the pharmacist tried to reinstate his license to practice after he had voluntarily suspended it due to a disability related to addictions. The pharmacist had attended an in-patient treatment program and he agreed to suspend his registration until the College received a report from a doctor specialized in addictions stating that he could return to practice. The doctor, an addictions specialist, evaluated the pharmacist in 2014 and the pharmacist eventually returned to work in 2015. He continued to see the doctor between January and April 2015 in the context of his return to work plan. In April 2015, the pharmacist relapsed and voluntarily suspended his license again. He completed another in-patient treatment program and, in 2016, was prescribed suboxone to reduce his opiates cravings. After successfully entering recovery, the pharmacist decided to begin the process of returning to work and contacted the College for an Independent Medical Evaluation (IME) to confirm his fitness to return to work. The doctor required that he taper off the suboxone in order to return to safety-sensitive pharmacy work, and engage in an abstinence-based recovery program instead.

The pharmacist stated that the doctor who performed the IME for the College discriminated against him based on his disability. First, he alleged that the doctor made discriminatory remarks during the IME and relied upon negative stereotypes of people with addictions as a basis of her recommendations. Second, he alleged that the doctor discriminated on the basis of religion by recommending he go to a religious-based treatment program which subscribes to a twelve-step approach. The pharmacist is an atheist and strongly objects to the religious component of the twelve-step approach . He asserts that being forced to attend such a program in order to get his job back constitutes discrimination based on his “non-religion” And would have a demeaning effect on him.

The pharmacist also stated that the College discriminated against him by accepting the recommendations provided by the doctor, which prevented him from returning to practice within a reasonable time period.

In order to prove complaints of discrimination, the pharmacist must prove he has the protected characteristics of disability and religion and he experienced an adverse impact regarding a service, facility or accommodation that is usually available to the public, and “that there was a nexus between his protected characteristics and the adverse impact” [48]. The B.C. Human Rights Tribunal granted both the doctor’s and College’s applications to dismiss the complaint based on religion under s. 27(1)(c), however, their applications to dismiss the complaint based on disability were denied.

In June 2018, following a settlement meeting facilitated by the Tribunal, the pharmacist obtained a new IME from a different addictions specialist who disagreed with the initial doctor’s recommendations. The new doctor recommended that the pharmacist remain on the medication while in a monitoring program and disagreed with the utility of a further in-patient treatment program, particularly a twelve-step model. The College’s Inquiry Committee adopted the new doctor’s recommendations in August 2018 as it constituted a second opinion and provided more current medical information. The Pharmacist is now eligible to submit an application for full pharmacist registration.

SEPTEMBER 2019

Ontario:

Morningstar v. Hospitality Fallsview Holding Inc. (o/a Hilton Fallsview), 2019 HRTO 1222 

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The applicant alleged that the respondent discriminated against her on the basis of sex and disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant specifically alleged her coworkers and her supervisor harassed her. She asserts that her coworkers harassed and bullied her by making comments and taking related actions about specific personal matters relating to her medical condition. After filing an Ontario Human Rights Application, the applicant resigned from her employment and commenced a civil claim. The civil claim alleged the same acts of harassment, bullying and abuse at the hands of the employer. 

The Tribunal found that Section 34(11) of the Code applies. Section 34(11) states:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a)    a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b)    a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

In conclusion, the Tribunal found that they had no jurisdiction over the matter due to the fact that the Applicant filed a civil claim seeking damages for the same allegations and issues as asserted in her initial human rights application. 

Smith v. Strictly Bulk, 2019 HRTO 1260.

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The Applications, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleged discrimination with respect to goods, services and facilities because of disability.  The applicant is a person with a disability who relies on her service dog. As she entered the respondents store she was approached by the store manager who requested that she leave the premise with the service dog. Despite the documentation the applicant provided to show that her dog was in fact a service animal, the store manager repeatedly requested that she vacate the premises and repeatedly mentioned health concerns with respect to the service dogs presence in the store. 

The Respondent never responded to the allegations, thus the Tribunal deemed the respondent to have agreed with the allegations set out by the applicant. In sum, the Tribunal ordered the Respondent to pay the Applicant $500.00 in monetary compensation for the injury to her dignity, feelings and self-respect.

Hajkowski v. Peel (Police Services Board), 2019 HRTO 1308.

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The applicant alleged discrimination with respect to goods, services and facilities because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). At the time of the applicant’s arrest he was suffering from several wounds on his fingers that were serious and very visible. Specifically, the applicant alleged that despite several requests while in custody the respondent’s personnel refused to give him his pain medication. In reply the respondent submitted that the wounds on the applicants fingers did not amount to a disability as defined by the Code. The Tribunal accepted that although the applicant’s condition appeared to be painful, there was limited information provided by the applicant that his conditions impede on his normal activities. The Tribunal found that the applicants injuries did not amount to a disability as defined in the Code. Since the applicant did not meet the definition of a disability, the Application had no reasonable prospect of success. For these reasons the Application was dismissed.

British Colombia:

 Hayes v. Kingsway Hotel and Pub and others, 2019 BCHRT 203  IN THE MATTER OF THE HUMAN RIGHTS CODE,  RSBC 1996, c. 210 (as amended)

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Mr. Hayes is a retired RCMP officer who acquired PTSD from his work as a first responder, therefore, receiving medical discharge. He was prescribed 5 grams of medical cannabis daily to cope with his PTSD and also received disability pension from Veterans Affairs which pays for 3 grams of his daily prescription for medical cannabis. Mr. Hayes filed a complaint against the Kingsway Hotel & Pub, the Respondents, alleging that they discriminated against him on the basis of disability contrary to s. 8 of the Human Rights Code. Mr. Hayes was asked to leave the property of the Kingsway Hotel & Pub by an employee because he was smoking cannabis on the patio where smoking was permitted. He informed the employee that he was smoking medical cannabis and provided evidence of his prescription as well as a Health Canada card that allowed him to possess and consume it in a public place. When Mr. Hayes returned to the Kingsway Hotel & Pub the following day to provide further information about medical cannabis, he was again asked to leave.

The Kingsway Hotel & Pub denied discriminating against him as their policy prohibited smoking cannabis on the patio where smoking tobacco was allowed, which was justified and complied with the federal and provincial laws and regulations. They also stated that it would have been an undue hardship to accommodate Mr. Hayes’ disability. Overall, the respondent applied to dismiss the complaint under ss. 27(1)(a), (b), (c) and (d)(i) of the Code on the basis that the  complaint is not within the Tribunal’s jurisdiction; that it does not allege facts that, if proven, constitute discrimination under the Code; that it has no reasonable prospect of success; and that proceeding with it would not benefit the person, group or class alleged to have been discriminated against.

The Kingsway Hotel & Pub argued that the complaint should be dismissed under s. 27(1)(a) as it was not within the Tribunal’s jurisdiction, however, it was found that the Tribunal’s jurisdiction was not relevant to their argument that Mr. Hayes was not legally entitled to smoke medical cannabis in a public place. The Respondents also argued that the complaint should be dismissed because Mr. Hayes was not legally entitled to consume medical cannabis on the Kingsway’s premises, rather, he was only entitled to possess it. It was also argued that the ability to consume cannabis on the Kingsway’s premises does not constitute an accommodation, facility or service usually available to the public. It was also argued by the Respondents that the complaint does not constitute discrimination under the Code since Mr. Hayes did not state that he was required to smoke medical cannabis on the premises for medical reasons.

Mr. Hayes alleges that the conduct of the Respondents made him feel “ashamed, depressed and ridiculed and that he was ‘a second class citizen as opposed to a lawful patron’ [and] he also alleges that the type of discrimination he complained of aggravates his PTSD and increases his social isolation” [21].

The Tribunal relied on the decision in Starnes v. Royal Canadian Legion, 2015 BCHRT 78 which was comprised of similar facts. In this case, “the Tribunal declined to dismiss the complaint in that case on the basis that a full evidentiary hearing was required because the factual and legal issues were not capable of being resolved on a preliminary application to dismiss” [34]. The Tribunal found that the respondents’ application to dismiss the complaint under s. 27(1)(d) is denied and if Mr. Hayes was successful at a hearing, he could be awarded monetary and non-monetary remedies.

Verozinis v. Maple Ridge Hyundai, 2019 BCHRT 208

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In this case the applicant, Mr. Verozinis, filed a complaint against Kot Auto Group Ltd., dba Maple Ridge Hyundai, (hereinafter referred to as the “Dealership”) alleging that he was discriminated against contrary to s. 8 of the Human Rights Code based on marital status, mental disability and physical disability. Mr. Verozinis suffers from PTSD, congenital deafness (auditory processing disability) and epilepsy. He also has a language deprivation disorder, also described as an auditory processing disorder. He asserts that he and his wife purchased a vehicle they did not desire as a result of not fully understanding the agreement and information the Finance Manager provided them because of the lack of accommodation for Mr. Verozinis disability.

Mr. Verozinis began interacting with the Finance Manager to close a deal in purchasing a specific hybrid car from their dealership. However, when it was determined that they could not get the hybrid vehicle they originally wanted, Mr. Verozinis and his wife informed the Dealership that they were not interested and wanted to purchase or lease a hybrid vehicle with a different dealership. The Finance Manager and General Manager of the Dealership were informed that Mr. Verozinis was hearing impaired. His wife requires time to communicate information to him as she serves as his translator. As a result of his auditory processing disability, it is significant that he has time to review visual information quietly with his wife before proceeding, yet, the Finance Manager spoke so quickly that it effectively excluded him from the entire process. Mr. Verozinis made a request for “accessibility” in order to discuss the matters with his wife, however, these requests were ignored. He said that despite raising this prior to arriving at the Dealership and during the transaction, the process occurred at a pace that did not allow him to process what was occurring with the assistance of his wife and eventually resulted in them purchasing a vehicle they did not desire. Ultimately, this placed Mr. Verozinis and his wife at a disadvantage since they did not know what was going on. The Dealership has filed an application to dismiss the complaint, alleging that it has not discriminated against Mr. Verozinis based on the facts, if proven, could not constitute discrimination under the Code s. 27(1)(b), there was no reasonable prospect of success, the complaint was made for improper motives or in bad faith and the complaint was filed after the time limit for filing. Based on the information in the complaint, the potential discriminatory conduct alleged could amount to a violation of the Code. In the Complaint, Mr. Verozinis stated that he requested accommodation as referred to as “accessibility” both orally and by email requests. He said that despite raising this prior to arriving at the Dealership and during the transaction, the process occurred at a pace that did not allow him to process what was occurring with the assistance of his wife and eventually resulted in them purchasing a vehicle they did not desire.

The Tribunal did not dismiss the complaint on the basis that it has no reasonable prospect of success since a full viva voce evidence and cross examination of the parties would be required to determine what occurred during the course of the sales in order to determine whether the complaint has a reasonable prospect of success. Finally, the Tribunal was satisfied that Mr. Verozinis believed that he was discriminated against in the purchase of his vehicle on the basis of his cognitive impairment, therefore, the Tribunal declines to dismiss the complaint on the basis that it was made in bad faith or for improper motives.

The Tribunal ultimately recommended that the parties participate in the Tribunal’s mediation process to discuss settlement.

Guldan v.  Bekins Moving and Storage – Kelowna, 2019 BCHRT 205

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In this case the applicant, Mr. Guldan, was on leave from work at a company called Bekins Moving and Storage in September 2018 on the WorkSafe claim when he learned that he was fired from Bekins Moving and Storage. Mr. Guldan stated that he called Bekins on numerous occasions, however, his calls were not returned and he did not receive documentation from Bekins stating that he had been fired. Mr. Guldan stated that he limps and has pain in his right knee as well as a neck problem. He filed a complaint against Bekins for discrimination on the basis of physical disability in employment under s. 13 of the Code. Bekins denied that it fired Mr. Guldan in September 2018 and denied discriminating. Bekins also asserted that the tribunal did not have jurisdiction to hear this matter as the company, a transportation focused business, was federally regulated. The Tribunal agreed and dismissed the complaint under s. 27(1)(a) of the Code as the Tribunal does not have jurisdiction over it.

NT by HST v Daljit Sekhon and others, 2019 BCHRT 201

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This decision involved an application filed by HST on behalf of his minor son NT, alleging that their landlords Daljit Sekhon, Gurwinder Sekhon and Parminder Sekhon (hereinafter referred to as the “respondents”) discriminated against the applicants, on the basis of NTs disability contrary to s. 13 of the Human Rights Code, RSBC 1996, c 210.

In July 2015, the Respondents purchased the rental house and became HST and NT’s landlords who moved in to the upstairs suite. HST says that the Respondents harassed the family and ill-treated them immediately after moving in and claimed this was due to NT’s disability. The respondents left garbage outside the family’s window, blocked their accessible entrance and prevented the family from parking the car used for NT in the driveway and cause them to park across the street far away for NT among other unaccommodating actions. NT was a ten-year old boy with cerebral palsy who uses  a wheelchair. Since 2012, NT lived with his parents and younger sisters in a basement suite of a house located right by the school that NT attended at the time. NT’s mother needed to live close by, as she had to go to the school twice a day to feed him. He argued that it was apparent by the derogatory actions that the Respondent’s view of NT of his family were that they were lower-status and undeserving people because of NT’s disability.

The Respondents then began to frequently raise the rent so that from the first increase until HST moved out in November 2017, the rent was increased by 33%. Furthermore, the Applicant says the harassment persisted when the Respondents moved their garbage receptacle to just outside the family’s kitchen window. HST argued that the Respondents often threw their garbage form the upper sutie into the garbage receptacle, making a mess outside his window. Photographic evidence was submitted to demonstrate the extent of the issue. HST pointed out that the garbage frequently contained diapers and believed that the garbage was causing NT to be sick more often with flu-like symptoms and vomiting (although they never brought in an expert witness to provide testimony to this claim.

HST said that the Respondents renovated the upstairs suite and left a stove and toilet just outside HST’s access door. Then, at the beginning of 2017, the Respondents told HST that he could no longer park their van in the House driveway (the same van used to transport NT and his wheelchair). HST was forced to park across the street and away from the house, requiring NT to have to be transported across the street to access his home and vehicle. HST said that he frequently asked the Respondents to try to secure access to the House driveway and for them to clean up the garbage, but was unsuccessful. He also provided evidence of text message exchanges.

In September 2017, HST and his family were given a notice to vacate the residence because the Respondents wanted to move in their relatives into the basement suite. HST and his family vacated the residence by November 15, 2017 and moved down the street, where they were required to pay an additional $1000 in rent per month.

The Tribunal cited Quebec Commission de norms, de l’equite, de la sante et de la securite du travail) v Caron, 2018 SCC 3 at para. 20 that the duty to accommodate a person with a disability is “a core and transcendent human rights principle”. The Tribunal found that the respondents did not accommodate NT’s disability did not attempted to accommodate, or even acknowledged the responsibility to accommodate. The Tribunal specifically cited the fact that when asked for accommodation to park the wheelchair accessible vehicle, the respondents  denied the request without reason. The Tribunal concluded that NT was impacted by the Respondent’s discriminatory actions and that these actions were motivated, at least in part, because of NT’s disabilities. 

The Tribunal ordered the Respondents to cease contravening the Code and refrain from committing the same or similar contravention, and found them liable for injury to NT’s dignity, feelings, and self-respect, in the amount of $10,000.

Pacheco v Local Pest Control, 2019 BCHRT 191

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This decision involved an application filed by Samir Pacheco alleging that Local Pest Control Ltd. [Local] discriminated against him on the basis of physical disability in the area of employment contrary to s. 13 of the Human Rights Code, RSBC 1996, c 210. Mr. Pacheco said that the day after he injured himself at work, Local terminated his employment upon receiving a doctor’s note indicating he needed two weeks of medical leave. Local denied the allegations of discrimination and argued that Mc. Pacheco’s disability or Local’s perception thereof was not a factor in the decision to terminate his employment. At the hearing, Mr. Pacheco testified about his injury and the conversation during which Local terminated his employment, and Local failed to call the other witness who was present during the conversation and who also made the decision to terminate Mr. Pacheco’s employment. Therefore, the Tribunal preferred Mr. Pacheco’s evidence regarding what transpired when he was fired.

Mr. Pacheco joined Local on a contract in early May 2018. He told Local that he had extensive experience in marketing and sales, and he was hired in part on his promise that he would assist in building their business. Mr. Ashby testified that Mr. Pacheco was not performing well as a salesman, and that Mr. Pacheco did not work the full 40-hour week he was being paid for. However, Mr. Pacheco submitted evidence that Local never spoke to him about performance issues related to either his hours or his sales numbers, and at no time did Mr. Ashby or the Operations Manager discuss the possibility of terminating Mr. Pacheco’s employment as a result of these issues.

In June 2018, Mr. Pacheco accidentally deposited another employee’s paycheque after an administration issue. When he realized this mistake, he says that he explained it to the Operations Manager and the employee, and went with the employee to speak with the bank in an effort to get the cheque back. Later that day, Mr. Pacheco deposited his actual cheque into his account and could not clearly explained why he deposited both cheques. On July 3, 2018, Mr. Pacheco injured his back while moving furniture and informed Mr. Ashby through text-message that night. The following day, the Operation Manager texted Mr. Pacheco asking him to get a quote for a job sending the address, to which Mr. Pacheco replied with a doctor’s note for two week medical leave. When Mr. Pacheco arrived at the office, an altercation ensued with the Operations Manager where Mr. Pacheco was fired, to which Mr. Ashby testified he was not a witness to.

The Tribunal found that Mr. Pacheco was able to prove that he had a physical disability, that he experienced adverse impact regarding his employment, and that it was reasonable to infer from the evidence that his disability was a factor in that adverse impact. The Tribunal awarded Mr. Pacheco $7500 as compensation for injury to his dignity, feelings, and self-respect. The Tribunal also ordered Local to pay Mr. Pacheco post-judgment interest on all amounts awarded until paid in full.

HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES JULY 2019

There have been some decisions recently from the human rights tribunals relating to disability. The following are a selection of decisions from the Human Rights Tribunals in BC and Ontario that were rendered during the month of July, 2019. Any relevant Supreme Court of Canada decisions from that month have also been included. This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project
Ebony Evans (JD Candidate, 2020), Valeria Kuri (MSW/JD Candidate, 2021), and Deborah Willoughby (MSW/JD Candidate, 2021)

SCC:

R v Penunsi

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This case is unique in that it draws attention to the issues bail conditions can impose on individuals dealing with addictions and how it is critical for the courts to not set up peace bond individuals to fail within the system.

 Towards the end of Mr. Penunsi’s prison sentence,  a peace bond was laid against him by an RCMP officer on the basis that he  believed that Mr. Penunsi would commit a serious personal injury offence when he would be released  from prison. Days before the end of his sentence, Mr. Penunsi was brought to court to respond to the request and a hearing date was  arranged for after his release from prison. However, this unconditional release was not ideal for the Crown who sought  to show why Mr. Penunsi should  stay in jail or follow conditions pending the hearing. The provincial court judge denied the Crown’s request and held that  he did not have jurisdiction to subject Mr. Penunsi to a show cause hearing. The judge also found that bail rules do not apply to peace bonds.

At the Supreme Court of Canada, it was unanimously decided that the arrest and bail rules applied to peace bonds in special way in that they act to prevent crimes rather than deal with an individual who is already accused of a crime.

 “The appearance of a defendant to a peace bond Information may be compelled by a summons or a warrant of arrest. A judge or justice of the peace has jurisdiction to subject a person to a show cause hearing when he or she has been arrested in relation to a peace bond Information and brought before the court.” In Mr. Penunsi’s case, no further order was required as the issue as it pertains to him was moot. Application of the bail rules were unenforceable since Mr. Penunsi was arrested without information as to why  he was being arrested and  without the chance to obtain a lawyer. Therefore, the judge could not apply conditions on him before his peace bond hearing.

It is important to note that the Court said judges need to be cautious not to set peace bond defendants up to fail. As bail conditions judges can often order people to avoid using drug and alcohol, yet, it can be difficult for individuals who are dealing with addictions. Similar to a peace bond, being on bail is not a crime, however, breaking a bail condition is. Therefore, judges need to be realistic expectations for marginalized and vulnerable individuals. Keeping an individual in jail should be a last resort, especially when a person is not charged with a crime. Instead, if an individual refuses to follow the conditions in place while waiting for their peace bond hearing, jail would then be a viable option.

British Columbia

Lewis by Lewis v Lobban and another, 2019 BCHRT 139

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This decision involved an application alleging that the Respondent, Lobban, discriminated against the Applicant, Aaron Lewis, on the basis of mental disability in tenancy contrary to s. 10 of the Human Rights Code, RSBC 1996, c 210.

 The applicant has a disability and as a result, his mother, Jean Lewis [Mother], has been appointed Committee of his estate and person. Mr. Lewis’ Mother was the individual who filed this application against the Respondents on behalf of her son. The Respondents denied discriminating and sought to have the complaint dismissed: Code, s. 27(1)(c).

The Applicants alleged that Mr. Lewis’ disability was a factor in the Respondent’s refusal to rent him the home. The Respondents alleged that they were picky about new tenants because of legal challenges with their previous tenants. They also allege that their property management company was pushing them to accept the Mother’s application because of its personal relationship with the Mother, which caused them to second-guess whether the Property management company had their best interest at heart.

Mr. Lewis lives with two caregivers and they were asked to move out of their previous tenancy because the owners of the property planned to move in. The Respondents owned the home in question and live abroad. They hired a property management company [Company] to help them rent out their home and manage their property in their absence. The Respondents had various applicants for the rental of the home and began arranging to rent to a family, however, those plans were abandoned after the family rented another home. Mr. Lewis’ mother was the next applicant in line. She offered the asking rental price, and the property Manager gave her a glowing recommendation. However, her credit score was too low. The parties continued to communicate back and forth regarding the Mother’s application—including the fact that the mother would not actually reside in the home, but would sign the lease—and ultimately, the Respondents felt pressured into renting the home to the Mother. They therefore terminated the relationship with the Company and informed the Mother that her application was not granted.

The Tribunal decided that Mr. Lewis’ disability was not the main reason why he was denied tenancy. Disability does not have to be the cause, or overriding factor, underlying the decision—it need only be one factor. Finally, the Tribunal found that none of the parties explained these issues to the Mother to give her a chance to respond or explore other options. The Respondents viewed Mr. Lewis’ situation as “more complicated”, which relates directly to Mr. Lewis’ disability and his resulting living conditions. Therefore, the application will proceed to a hearing.

Han v New Chelsea Society and others, 2019 BCHRT 154

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This decision involved an application alleging that the Respondents, New Chelsea Society [New Chelsea], together with its Director of Operations Stefan Baune and employee Rudy Small, discriminated against her tenancy on the basic of disability by failing to remediate her housing unit and by making a discriminatory comment towards her contrary to s. 10 of the Human Rights Code, RSBC 1996, c 210. [l2] The Respondents denied discriminating and sought to have the complaint dismissed: Code, s. 27(1)(c).

New Chelsea is a non-profit housing society and a registered charity that provides affordable housing to seniors, families, and persons with disabilities in Vancouver, BC who require below market rentals. The applicant, Ms. Han applied for housing in October 2010 and disclosed that she has a disability arising from a brain injury from a car accident in 1999. Ms. Han was accepted for housing at New Chelsea and began residing in the unit in March 2011. In 2016, Ms. Han was provided with a new refrigerator, and in October 2017, Ms. Han reported that it had stopped working. The Respondent Rudy Small became aware of this issue and notified Ms. Hand that it would be addressed. Mr. Small emailed two employees of New Chelsea on October 5, 2017 and made the following comment: “I have had contact with this tenant before…she is not the easiest person to deal with since she has a Brain injury…”. Mr. Small inadvertently copied Ms. Han on the email but insisted that the comment was not discriminatory in nature but was a reminder to New Chelsea that Ms. Han had a brain injury and that it had to be taken into consideration.

In late 2011 or early 2012, Ms. Han said [l3] there was a flood in the Unit closet. She said [l4] that it was not replaced but was improperly repaired and against the recommendation of a plumber. Ms. Han said she subsequently developed respiratory problems including frequent lung infection, culminating with a diagnosis of asthma in August 2017. Ms. Han said a second flood occurred in the same closet in December 2017, and the result was mold in the unit. Ms. Han requested she be accommodated into another unit while the pipe was being repaired and even got a doctor’s letter to back up her claim. In a letter dated December 20, 2017, Mr. Baune denied that there was mold in the unit and maintained that New Chelsea had fulfilled its obligations to remediate the unit, and denied to provide Ms. Han with an air quality assessment. Ms. Han personally paid for a mold inspector, Axiom Mold Experts [Axiom] in January 2018. Axiom confirmed there was mold in the unit and that the air quality was so bad that she should not reside in the unit. In February 2018, New Chelsea arranged for another mold inspection to be conducted by ABM Environmental Services Inc. [ABM] who confirmed that mold was present in the unit.

On June 15 2018, Ms. Han said that she was forced due to financial circumstances, to move back into the Unit, and that her health worsened. She eventually moved to an Airbnb to avoid staying in the unit. The Tribunal found that Ms. Han met all parts of the Moore test to prove discrimination based on disability including that she had a disability and suffered adverse impacts due to her disability. The Tribunal additionally found that New Chelsea’s application to dismiss the Complain under s.27(1)(c), s. 27(1)(d) and s.27(1)(f) could not succeed and therefore proceeded to a hearing. The Respondents application to dismiss the allegation of discriminatory Comment made against Mr, Small was accepted.

Ontario

Fatima v. Trillium Health Partners, 2019 HRTO 1038

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The applicant filed an Application alleging that the respondent discriminated against her on the basis of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant alleged that she attended Credit Valley Hospital, which is part of the Trillium Health Partners organization as she was ill. She alleged that the individual respondent, Dr. Mulgund told her that in her opinion, she was fine, did not need any medication and could go home. The applicant alleged that she began to feel worse and asked to speak to Dr. Mulgund further, but Dr. Muglund refused to attend to her further. She then decided to call an ambulance to transfer her to another hospital but was told that the ambulance service did not provide transfers between hospitals.  On her way out of the hospital, she alleged that she encountered members of the respondent’s paramedic service who treated her disrespectfully. Later that day, members of the respondent’s police service apprehended the applicant and returned her to Credit Valley Hospital pursuant to a Form 9 under the Mental Health Act, R.S.O. 1990, c. M.7, as amended,issued by Dr. Mulgund. She alleged there was no basis for the Form 9 and that she was released after several hours.

The respondent’s position was that the application should be dismissed due to the fact that the applicant has since filed a civil claim which alleges the same violations of the applicant’s rights under the Code and the Canadian Charter of Rights and Freedoms on the basis of disability and creed. The Tribunal agreed and dismissed the application based on Section 34(11) of the Code which states:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

Saxon v. ScrapFest Inc., 2019 HRTO 1043.

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The Applications, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleged discrimination with respect to goods, services and facilities because of disability.  The applicant alleged that ScrapFest Inc. (“ScrapFest”) and the Corporation of the City of Kitchener (“the City”), the respondents, discriminated against her when not all vendor/exhibitor booths at the ScrapFest held in Kitchener in 2016 and 2017 were accessible to her as a person who uses a rollator (wheeled walker).

The Tribunal dismissed the application pursuant to section 1 of the Code as the factual backgrounds revealed that although the applicant inquired multiple times about the accessibility of the event, she did not in fact attend the event and therefore did not directly experience accessibility discrimination. The Tribunal reasoned that the applicant frustrated the accommodation process. The Tribunal decided that given that the two-day ScrapFest event was about to happen in slightly over a month and the applicant not contributing to conversations to address accessibility concerns, the organizers of the event were reasonable in the circumstances.

MacDonald v. Workplace Safety and Insurance Board, 2019 HRTO 1091.

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The applicant filed an Application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, he alleged that the Workplace Safety and Insurance Board (“WSIB”) infringed his human rights when the WSIB changed the narrative and nature of appealable issues and provided false information that presented his disability as having less impact on his functional abilities than he claims and minimizing his disabilities so as to find that he is capable of returning to work.

The Tribunal dismissed the application based on the Tribunal’s 2012 decision of Seberras v.Workplace Safety and Insurance Board, which lays out when and whether Tribunal has jurisdiction when a challenge is made to a decision relating to benefits under a statutory scheme. In the decision it was emphasized that the Tribunal is not to be used as a mechanism for appeal of other statutory decision makers. It was determined that this matter was an attempt to have the Tribunal review the decisions made in respect of his WSIB claim.  In these circumstances, the Tribunal found that it was plain and obvious that the subject matter of the Application does not fall within the Tribunal’s jurisdiction and subsequently the application was dismissed.

HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES JUNE 2019

There have been some decisions recently from the human rights tribunals relating to disability. The following are a selection of decisions from the Human Rights Tribunals in BC, Ontario, and Nova Scotia and that were rendered during the month of June, 2019. Any relevant Supreme Court of Canada decisions from that month have also been included. This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project
Ebony Evans (JD Candidate, 2020), Valeria Kuri (MSW/JD Candidate, 2021), and Deborah Willoughby (MSW/JD Candidate, 2021)

British Columbia

McNish v The Source and others, 2019 BCHRT 126         

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This decision involves an application alleging that the respondent discriminated against the Applicant, Destiny McNish, on the basis of mental disability in employment contrary to s. 13 of the Human Rights Code, R.S.O. 1990 c. H. 19. The applicant alleged that her use of medical marijuana to treat her disabilities was a factor in the Respondents’ decision to fire her. The Respondents denied discriminating and applied to dismiss the complaint arguing it has no reasonable prospect of success: Code, s. 27(1)(c).

The Applicant worked for The Source as an assistant manager and began in February 2018. She said she has chronic migraines and an anxiety disorder and that she takes medical marijuana as a prescribed treatment for them. The parties agreed that Ms. McNish used medical marijuana, and the individual respondents were involved in the decision to fire her. In late December 2017, Ms. McNish had obtained a letter from a medical practitioner supporting her use of medical marijuana. In response to the complaint, the Respondents stated that by mid-April 2018, an unnamed co-worker approached a direct sales manager for The Source, to report concerns about Ms. McNish’s behaviour including using a harsh tone to staff, having escalating personal conflicts with sales associates, vaping marijuana in the store bathroom, and leaving work during her shift to later return appearing to be under the influence of marijuana. The Respondents met with Ms. McNish to discuss these incidents and reported the meetings.

The Respondent requested and received more information about the amount of medical marijuana she needed to take, in what form, and how many times a day. At that time, The Source accepted that Ms. McNish had a disability that it was required to accommodate. In terms of whether this had an adverse impact in employment on Ms. McNish, the Tribunal accepted that it had because she was fired. Finally, the Tribunal accepted that The Source learned about Ms. McNish’s medical marijuana prescription, and that she had been using it. The Tribunal held that the Respondents had a duty to inquire whether Ms. McNish needed accommodations for her disability. From the timing of The Source’s decision to fire Ms. McNish outlined above, the Tribunal could draw an inference that Ms. McNish’s disabilities—and her related use of medical marijuana—were a factor in the decision to fire her. Therefore, the Tribunal denied the application to dismiss the complaint.

Chen v La Brass Foods, 2019 BCHRT 111

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This decision involves an application alleging that the respondent discriminated against the Applicant, Xi Chen, on the basis of mental disability in employment contrary to s. 13 of the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant alleged that La Brass failed in its duty to accommodate her disabilities in the spring of 2018 and terminated her employment on June 2, 2018.

Ms. Chen, a 24 year old woman, described being diagnosed with depression in 2011, which turned into a diagnosis of bipolar disorder and eventually schizoaffective disorder. Ms. Chen was hired by La Brass in mid-October of 2017 as a busser, having no prior restaurant experience. She described her experience with La Brass as beginning as a respectful relationship with a lot of pleasantries but says that in November and December of 2017, she did not feel treated with the same respect as everyone else. Ms. Chen described the managers as speaking frequently about the speed at which she worked, and that speed was an issue for her. She stated that the manager who hired her, Judy, asked her if she had an anxiety disorder and suggested to her in February 2018 that working at the restaurant was perhaps not a good fit for her. Judy and another manager, Roger, suggested Ms. Chen work the following shift that was scheduled, where they would discuss the possibility of her returning to work in the future.

Ms. Chen provided a medical note for her disability and after her meeting with her managers in February, she began to work in the back kitchen rather than on the floor, which she found to be a good fit. Despite not asking for further accommodations, Ms. Chen received a text message from Judy indicating that La Brass was prepared to accommodate her disability. Despite these assurances, her workload increased until her duties reverted back to where they had been prior to her anxiety attacks. Ms. Chen was subsequently hospitalized and was an inpatient at the psychiatric ward of Burnaby Hospital. She dropped out of her university program, her relationships suffered, she was unable to work and pay bills and had to move back in with her parents. She returned to work on May 27, 2018, and on June 2, she was terminated.

The Tribunal found that Ms. Chen had experienced an adverse impact regarding her employment, and that her disability was a factor in this adverse impact. The complaint was therefore justified, and La Brass was ordered to compensate Ms. Chen for her wage loss in the amount of $1,301.14; for injury to her dignity, feelings and self-respect in the sum of $10,000; and pre and post judgement interest on the award for lost wages based on the rates set out in the Court Order Interest Act.

Gruber v Mansini Steel Manufacturing and others, 2019 BCHRT 122

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In this matter, the applicant alleged that Mansini Steel Manufacturing Ltd. [Mansini], its director James Chamberland and employee Heather Chamberland discriminated against him by dismissing him from his job because of mental disability contrary to s. 13 of the BC Human Rights Code. The Respondents denied discriminating and claimed they were never informed about Mr. Gruber’s alleged mental disability. They also say Mr. Gruber abandoned his position. They therefore applied to dismiss the complaint under s. 27(1)(b) and (c) of the Code.

Mr. Gruber was employed by Mansini from April 2012 to November 2017 as its General Manager. Heook a medical leave from October 6 to November 13, 2017 for what he says was a mental disability-related depression and workplace stress that aggravated his depression. The Respondents disputed that Mr. Gruber had a disability and say they were never made aware of any alleged disability during Mr. Gruber’s medical leave. The Respondents claimed they were aware that Mr. Gruber was experiencing some personal stress caused, in part, by a house he and his wife were building. They argued that Mr. Gruber abandoned his position on October 6, 2017 when he had said that he had “had enough” and walked out of the facility. Ms. Chamberland claimed she took this to mean that Mr. Gruber quit his job, and later that afternoon, requested that Mr. Gruber return the company’s cell phone and keys. On October 10, 2017, Mr. Gruber’s wife emailed Ms. Chamberland to advise her that Mr. Gruber was sick and provided her with a doctor’s note but did not specify the nature of the medical condition. Mr. Gruber later provided documentation that he was still unable to work until October 30, 2017. He also returned the company cell phone. He was further reassessed and was not cleared to work until November 14, 2017 without restriction. Mr. Gruber alleged that he informed Ms. Chamberland of this information, but that she responded unprofessionally, stating that the company was unsure if they wanted him to return to work and that they could “do whatever [they] want[ed]”. Ms. Chamberland admitted to this, but alleged that it had nothing to do with Mr. Gruber’s disability, but reflected her frustration about Mr. Gruber’s work performance.

The Tribunal found that Mr. Gruber met the three requirements necessary to succeed with his complaint. On a balance of probabilities, he was found to have a mental disability, to have experienced an adverse impact regarding his employment, and it was found to be  reasonable to infer from the evidence that his disability was a factor in the adverse impact.

Ontario

Liverance v. Ontario (Attorney General), 2019 HRTO 943.

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The applicant filed an Application alleging that the respondent discriminated against her on the basis of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant was charged with a criminal offense. Between December 21, 2015 and September 14, 2016 there were 14 court appearances related to the criminal charges against the applicant. The Crown Attorney stayed the charges against the applicant on September 14, 2016. The applicant stated that he has a hearing impairment and that the respondent did not provide him with appropriate accommodations to allow him to participate in the criminal proceedings. The applicant alleged that the Crown refused to provide him with accommodations and took the position that he could hear the proceedings without difficulty. The applicant noted court appearances where the Court provided him with assistive hearing devices that did not work. The applicant argued that he raised the issue, but the matter proceeded nonetheless. The applicant believed that the Crown purposely delayed the criminal proceeding. 

The Tribunal found that the Application should be dismissed based on prosecutorial immunity, which states that the actions of prosecutors in the course of carrying out their duties are in most cases not “services” within the meaning of section 1 of the Code. The Tribunal found that the applicant’s allegations arising out of the events in Court on September 14, 2016 have no reasonable prospect of success. The Tribunal indicated that the Crown’s decision to stay the charges against the applicant was squarely within his function and discretion protected by prosecutorial immunity. The Court’s decision to accept the stay or to refuse to entertain the applicant’s objection to a stay based on his claims of inadequate accommodations was a judicial decision protected by judicial immunity. In these circumstances, the applicant has no reasonable prospect of showing that his Code rights were violated in the criminal court proceeding on September 14, 2016 and these allegations were dismissed by the Human Rights Tribunal of Ontario. 

Ravanski v. Primmum Insurance, 2019 HRTO 995.

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The applicant alleged discrimination because of disability reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that someone told him that an elevator was out of service. He also made reference to damage done to his vehicle and to harassing phone calls and surveillance. Due to the broad nature of the initial Application, the Tribunal advised the applicant via a Notice of Intent to Dismiss, that a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code. The applicant did not address the issue of the absence of a link to the grounds he selected, but instead reiterated the allegations contained in the initial Application and provided some further detail about them and related documentation.

At the hearing, the Tribunal relied on precedent that confirms that an application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. The Tribunal found that in these circumstances, it was plain and obvious that the subject matter of the Application was not conduct prohibited by the Code, and not fall within the Tribunal’s jurisdiction and was therefore dismissed.

Creer v. City of Hamilton Mayor Fred Eisenberger, 2019 HRTO 1002.

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The applicant filed an Application alleging discrimination because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that the respondent sometimes brings his dog to City Hall, that she is allergic to a number of things, including animals, and that the potential presence of that, or any, dog causes her anxiety on those occasions when she goes to City Hall. 

The Tribunal sent the applicant a Notice of Intent to Dismiss, advising the applicant that a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify what incident of discrimination had occurred on the date noted or that any specific acts of discrimination within the meaning of the Code. The applicant responded by filing submissions, however, these submissions, did not address the issue of the failure to identify specific acts of discrimination within the meaning of the Code. As a result, the Tribunal found that the application did not fall within its jurisdiction and was dismissed.

Di Biase v. 1004904 Ontario Limited O/A Canada Pure Water Co. Ltd, 2019 HRTO 1005

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This Application alleges discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The applicant was ordered by his physician to be off work for four weeks following a heart attack and he informed his employer, the respondent. The applicant did work for the respondent while he was off work. In the time that he was off there was some dispute about the hours for which he would be paid for. When the applicant returned to work, he was notified that he was being terminated due to his ongoing health concerns. The legal test applied to determine whether an employee has experience discrimination in employment because of disability was whether:  (1) The employee has or had a disability; (2) The employee experienced an adverse impact; and (3) The fact that the employee has or had a disability was a factor that contributed to the adverse impact.

The Tribunal confirmed that even if an employer terminates the employment relationship because the employee has had a disability, the termination is discriminatory whether or not there is an actual disability at the time of the termination. The Tribunal further found that there was no evidence of any other reason why the applicant’s employment would have been terminated at that time. The applicant’s inference that this was done due to his disability was therefore clear based on the sequence of events. The Tribunal concluded that the applicant was entitled to loss wages of $93,431 as well as $10,000 of compensation for injury to dignity, feelings and self-respect. 

Nova Scotia

Yvette Beals and 3268073 Nova Scotia Limited o/a Dartmouth Comfort Inn (Windmill Road location) and The Nova Scotia Human Rights Commission

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This decision involves an application alleging that the respondent discriminated against the Applicant, Yvette Beals, on the basis of mental disability in employment contrary to s. 13 of the Human Rights Act, RSNS 1989, c 214 . In this matter, the applicant alleged that Darmouth Comfort Inn terminated Ms. Beals from employment on October 13, 2017 and she filed a complaint with the Nova Scotia Human Rights Commission on December 23, 2017.

Ms. Beals felt that she was performing her job tasks competently, however, she experienced anxiety and distress that she attributed to her work at the front desk of the Inn. Ms. Beals asked for her hours to be reduced, and eventually she visited a physician who believed that she needed to take time off of work entirely. There were no discussions on the telephone or in writing about terminating Ms Beals’ employment when she went off of work for health reasons. When Ms Beals was cleared to return to work several months later, the Inn staff advised that they did not have any work available for her and that they would pay her two weeks notice and terminate her employment. Ms. Beals was also advised that staff had been advocating for her not to be brought back on as an employee.

The Commission believed that Ms. Beals did establish that she had a mental disability and that the Inn staff knew about her mental distress. When Ms. Beals notified the Inn that she was able to return to work, the negative response was immediate and abrupt. There was no inquiry about Ms. Beals’ health. The Board of Inquiry held that the parties should move forward with a mediation between themselves with the assistance of the Commission to determine whether there is an avenue for Ms. Beals to return to employment, or alternatively whether she could receive termination pay.


Human Rights Tribunal Disability Case Summaries May 2019

There have been some decisions recently from the human rights tribunals relating to disability. The following are a selection of decisions from the Human Rights Tribunals in BC, Ontario, and Nova Scotia and that were rendered during the month of May, 2019. Any relevant Supreme Court of Canada decisions from that month have also been included. This information is not intended to provide legal advice.

Prepared by Research Assistants for the Law, Disability & Social Change Project
Ebony Evans (3L), Valeria Kuri (2L), and Deborah Willoughby (2L)

British Columbia

X.P. obo J.R. v. The Hospital and another (No. 2), 2019 BCHRT 96 

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This decision concerns a complaint filed on behalf of J.R, a person with mental and physical disabilities, by his mother, X.P. against a Correctional Center and a hospital. J.R. is a person with schizophrenia, a learning disability, and a hearing impairment. The complaint against the Correctional Center alleges it discriminated against J.R. on the basis of mental and physical disability in accommodation, service, or facility customarily available to the public contrary to s. 8 of the Human Rights Code. The Correctional Center denied discriminating against J.R. and has applied to have the complaint dismissed against it because it has no reasonable prospect of success:   RSBC 1996, c 210, s. 27(1)(c).

In 2015, J.R. was admitted to the Correctional Center and at the time, X.P says J.R. was psychotic and placed in segregation, his mental condition was not assessed, and that he was given medication that exacerbated symptoms of one of his mental disabilities. She also says that for the majority of the time J.R. spent in the Correctional Center in 2015, he was in segregation—which further exacerbated his symptoms—and he did not receive adequate medical treatment there. She also says he was beaten by guards because of his behaviour, which related to his disability, and that as a result, he required surgery resulting in life-long scars. The application to deny the whole complaint was denied because the Correctional Center did not submit any evidence that they did not discriminate against J.R. In fact, it did not provide any affidavit evidence or statements from anyone at the Correctional Center about what happened to J.R., while X.P. provided documentation that appeared to support her allegations of discrimination. The complaint alleging discrimination against J.R. that relates to assessments done by medical staff (and medications given to him), as well as the part of the complaint that alleges discrimination on the basis of J.R.’s hearing impairment and learning disability were dismissed. This was due to the fact that the Correctional Center argues they followed their policies and procedures.

K v. RMC Ready Mix and another, 2019 BCHRT 102

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This decision involves a complaint filed by K against RMC Ready Mix Ltd. [RMC] and Lafarge Canada Inc. [Lafarge] alleging discrimination on the basis of mental disability regarding employment contrary to s. 13 of the Human Rights Code[Code]. K alleged that the Respondents discriminated against him by requiring him to agree to random drug testing and other related terms as a precondition to returning to work after a medical leave of absence; and by terminating his employment rather than considering alternative accommodations for his addiction-related disability. The Respondents deny discriminating and apply to dismiss the complaint under ss. 27(1)(b), (c) and (d)(ii) of the Code. The tribunal did not dismiss the complaint.

K argued that he began employment with Lafarge in 2013 and that RMC is a wholly owned subsidiary of Lafarge, while the Respondents submitted that K is employed by RMC. Around mid-October 2017, K was diagnosed with bipolar disorder. K self-admitted to a hospital and subsequently took a medical leave of absence due to his disorder and drug use disorder. K was referred to the employee assistance program [EAP] by Lafarge and K voluntarily entered a treatment center until February 2018.

During his treatment period, K relapsed and attended a further detox program. Around April 2018, K began to connect with RMC for a return to work plan, and K provided documentation indicating he was cleared to work without restriction by May 15, 2018. On May 17, 2018, RMC responded to K’s inquiry about returning to work and advised him that he would need to submit to a drug test and sign an agreement to enable his return to work. The day before the meeting, RMC advised K by text message that he would be required to submit to random drug testing in a matter of hours. K missed the drug test and was advised that he would not be able to return to work until the drug test came back negative and scheduled another drug test for June 2018.

In the meantime, K’s disability benefits were cut as a result of his doctor confirming he was no longer disabled. K’s lawyer wrote to RMC on June 7, 2018 advising that K would not agree to proposed drug testing or the Agreement but was prepared to discuss suitable accommodations for return to work. On July 19, 2018, RMC terminated K’s employment for cause.

The tribunal declined to exercise its discretion to dismiss the complaint under s. 27(1)(b). At the same time, the tribunal was not persuaded that it was reasonably certain that the Respondents would succeed in establishing that the terms set out in the Agreement constituted a reasonable accommodation. Finally, the application to dismiss the complaint was denied.

Ontario


Szajewski v. The Dominion of Canada General Insurance Company, 2019 HRTO 741

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This decision involves an application alleging that the respondent discriminated against the Applicant on the basis of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19. In this matter, the applicant alleged that following a motor vehicle accident in July 2016 her auto insurance provider failed to approve things that it should have had approved and failed to accommodate her disability. On April 27, 2017, the applicant was requested by her insurance provider to attend an in-person assessment. The applicant alleges that the insurance company did not provide transportation to and from this assessment. She also alleges that her hearing impairment requires her use of a recording device during the assessment. The company in which the insurance provider (Respondent) used to conduct the assessment refused the applicant’s use of such recording device. As a result, the applicant suggests she suffered discrimination because  her insurance claim was delayed, no explanation was provided on the Respondent’s inability to accommodate her disability, and there was not a fair process in adjudicating her claim.

The Tribunal found that the Application failed to identify any specific acts of discrimination within the meaning of the Code and did not point to any evidence to establish a link between her disability and the actions of the respondent (including confirming and providing transportation to and from the in-person assessment). The Tribunal held that it does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program.  The applicant’s allegations that she is entitled to statutory accident benefits (“SABS”) is not within the Tribunal’s jurisdiction and thus such claims must be brought before the License Appeal Tribunal Act, I999, S.O. 1999, c. 12. The tribunal dismissed the application.

Grey v. Peel Police Services Board, 2019 HRTO 770.

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This is an interim decision released by the Human Rights Tribunal of Ontario. This Application was filed on May 31, 2017, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability. The Application sets out 11 different allegations of harassment and discrimination based on interactions with the Peel Police Services from 2009 to 2016.  

In early June 2016, the Peel Police apprehended the applicant and transported her to Trillium Hospital after an incident in a parking lot. The applicant’s vehicle was towed away and she was put in “lockdown” for a week. The Tribunal held that a police apprehension under the Mental Health Act is not per se discriminatory ; it may be that it was reasonable for the police to bring the applicant to a mental health facility. The Tribunal could not find that the allegations, which occurred in June 2016, were outside the Tribunal’s jurisdiction. In sum, the Tribunal ordered (1) The Application to proceed regarding the incident alleged to have occurred in June 2016 and (2) The remainder of the allegations  be dismissed.

LaCombe v. Toronto Transit Commission, 2019 HRTO 792.

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The applicant filed an Application under the Human Rights Code, R.S.O, 1990, C. H. 19, alleging discrimination with respect to employment because of disability and age. The applicant was an employee of the respondent employer, Toronto Transit Commission (“TTC”), until his retirement in 2018. He was a member of the Union in which his position was subject to a Collective Agreement that provides long-term disability (“LTD”) benefits. The applicant had a stroke on June 29, 2012, which caused his disabilities. He claims that the respondent did not meet its obligation to accommodate his disability-related needs after January 2014. He wanted to work and the TTC did not find him work. As mentioned in paragraph 9 of the decision:

 Section 34(1) of the Code provides:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incidents to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

The Tribunal relied on section 34(1) to dismiss the application on the basis that the delay in  applying was not made in good faith. The tribunal refused the applicants explanation that he was unaware that he could claim discrimination against the employer (respondent), by stating, “ignorance of one rights is not sufficient to establish a good faith explanation” (para 53).

Day v. Saini Energy Inc., 2019 HRTO 825.

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This Application alleges discrimination with respect to employment because of disability and sex, sexual harassment and sexual solicitation or advances, contrary to the Human Rights Code, R.S.O. 1990, c. H.19. Neither corporate nor individual respondent responded to the Application. The applicant worked for the corporate respondent as a cashier, earning minimum wage with hours ranging from 16 hours per week to full-time hours. Several years ago, the applicant was diagnosed with gallstones. She was told that there was no medical procedure that could be done at that time to address the condition. In October, 2016, the applicant required surgery for her medical condition and notified her employer that she would need five days off and would be returning to work after the time provided in a letter by her surgeon. Her employer acknowledged her request and did not schedule her to work the day prior to surgery or any other day after. About two weeks post surgery, the applicant received a termination letter via email stating that her employment had been terminated as she did not fit their corporate culture (para 20). The applicant was not given an opportunity to return to work after her surgery nor was h sgiven lieu pay of such notice.

The Tribunal found that from the medical documentation and oral evidence it was more probable than not that her disability and request for accommodation were factors in the respondent’s decisions to not schedule her for shifts and to terminate her employment. In sum, the tribunal found that the corporate respondent breached the Code by discriminating against her because of her disability. The tribunal ordered the respondent to pay the applicant $1,998.07 for compensation of lost income as well as $15,000 in general damages.

Gauthier v. Yonge Palace Guest House North York Centre, 2019 HRTO 840

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This Application involves allegations of discrimination with respect to accommodation on the basis of a disability, in violation of the Human Rights Code, R.S.O. 1990, c. H.19. The respondent did not file a response to the application. The applicant explained to the tribunal that he has a visual impairment and requires the use of a guide dog. The applicant stated that he reserved a room in the respondent’s guest house for two people on July 23 and 22, 2018 and that upon arrival, the applicant was denied entry into the room because he was accompanied by his guide dog. The applicant explained that this event was stressful for him. On basis of the facts that the respondent denied the applicant a room because he had his guide dog with him, the tribunal concluded that the respondent violated the rights of the applicant to equal treatment with respect to services, goods and facilities because of his disability, contrary to section 2(1) of the Code. The respondent was ordered to pay $5,000 to the applicant for injury to his dignity, feelings and self-respect.

Newman v. Ontario (Attorney General), 2019 HRTO 866.

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This is an Application filed on April 30, 2017, alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19.  The applicant alleged discrimination in a series of job application processes, which took place between September 2015 and May 2016. He alleged that the processes were unfair because they failed to accommodate his disability and the interview questions were more challenging to persons with his disability and were not linked to the essential requirements for the position. He also alleged that the respondents failed to conduct an adequate investigation of his complaints relating to the first process and interview. In an email to the respondent, the applicant conceded that he had not requested accommodations prior to the interview and stated that he had not realized prior to the interview that he needed accommodation. The Tribunal found that even assuming the truth of the factual allegations, there was no reasonable prospect that the applicant could prove discrimination or failure to accommodate in violation of the Code.  Thus, there was no reasonable prospect that the Application would succeed and the Tribunal dismissed the application.

Nova Scotia

Melody Harding v Province of Nova Scotia (Department of Health and Wellness) and Nova Scotia Human Rights Commission

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This decision involves a complaint made against the Province of Nova Scotia and the Department of Health and Wellness alleging discrimination based on disability contrary to s. 5(1) the Human Rights Act. The Complainant alleged she was denied breast reduction surgery on the basis that her body mass index (BMI) was above the threshold covered by MSI (Nova Scotia’s Health Insurance Program). The Complainant was concerned that the policy and criteria for patients seeking breast reduction surgery were discriminatory. The Complaint was referred to a Board of Inquiry by the Commissioners of the Human Rights Commission. However, prior to the hearing, the Complainant and the Respondent reached a settlement. The government will remove the BMI criteria as a consideration factor for the surgery which would allow women who were previously denied in the past because of their BMI to obtain the surgery. In the release, the Complainant stated that “removing the body mass index restriction from the breast reduction surgery criteria is such a positive development for the women in Nova Scotia that are effected by macromastia, myself included.” Although the settlement amount reached is confidential, in the ruling, the commission commendeds the province for reaching an agreement that will benefit all Nova Scotian women who have been previously denied the surgery because of their BMI.


Southwestern Ontario Disability Scholars’ (SWODS) Workshop Summary

By Deborah Willoughby, JD/MSW [2021]

The first ever Southwestern Ontario Disability Scholars’ (SWODS) workshop took place on Thursday May 23, 2019 and was hosted by Windsor Law and the Law, Disability & Social Change Project. This workshop brought together more than a dozen brilliant scholars from universities in southwestern Ontario (with a couple from even further afield) to share their research pertaining to persons with disabilities while showcasing their unique interdisciplinary perspectives. Over the course of the day, presenters were organized into panels of three based on similar themed topics.

What I found quite interesting about the research presentations was the overall theme of erasure evident in not only history and the contemporary legal system, but also in commonplace things one may not necessarily question including films and pop culture. I was always aware of the lack of representation in these industries. However, I did not think of how the creative voices of persons with disabilities in creating content related to disability, such as memes, have been ultimately replaced by content generated by people without disabilities.

Ultimately, the workshop inspired me to continue to be a partner in advocacy with persons with disabilities to ensure their voices and experiences are heard, perhaps in a research setting similar to many of the scholars!

Here is my summary of these inspiring papers:

The start of the workshop began with the panel,“Sharing Knowledge on Disability.” Jay Dolmage, an Associate Chair from the University of Waterloo, began the day with his presentation on “Academic Eugenics.” He discussed the insidious eugenic underpinning within the culture of higher educational institutions in Canada and how disciplines have been established through the exploitation of others including persons with disabilities.

Following the theme of exploitation, Madeline Burghardt, an Assistant Professor from King’s University College at Western University, presented on “Uncovering stories of ‘difference’: Complicating popular understandings of Canadian nation-building.” Her presentation examined how government-run institutions for persons with intellectual disabilities have been used as tools for surveillance, biopower and categorizing people.

The third panelist’s research was also shaped by lived experiences. Pamela Cushing, an Associate Professor at King’s University College at Western University, presented on “Shaping a Disability Studies that Resonates with Diverse Undergraduates.” As the creator of the Disability Studies program at her university, Cushing’s reflections were  guided by her experience and by feedback from students in Disability Studies. Among other things, she discussed the importance of and meeting students where they are at, drawing on their own experiences and making spaces for disagreement and debate within the classroom.

The next panel centered around “Disability and the Person.” Ameil Joseph, an Assistant Professor in the School of Social Work at McMaster University, presented on “The subjects of oblivion: subalterity and contemporary technologies of transnational eugenics, sanism, and racial eradication.” He examined how critical disability studies is deeply connected to historical systems of dehumanization, institutionalization and issues of access and equity.

The morning concluded with Jake Pyne’s presentation titled “‘Building a Person’: Legal and Clinical Personhood for Autistic and Trans Children in Ontario.” Pyne, a postdoctoral Fellow at the College of Social and Applied Human Sciences at the University of Guelph, offered a comparative perspective on Applied Behavioural Analysis (ABA) and conversion therapy. He highlighted the similarities of both therapies which bring together ableism and transphobia.

The morning panels ignited discussions during lunch which continued into the afternoon panels beginning with the topic “Law, Legislation and Persons with Disabilities.” Beginning the panel was David Ireland, Assistant Professor at the University of Manitoba Faculty of Law, who presented on “The Canadian Jury Trial: Reimagining Jury Composition in an Inclusive Society.” Ireland’s presentation offered insight into jury representativeness where there is a lack of representation of persons with disabilities on juries. What does it mean when the voices of persons with disabilities are erased from having meaningful impacts on legal outcomes?

This theme of erasure was similarly discussed by Windsor Law’s Assistant Professor and Externship Director, Tess Sheldon, who presented on “Disability Erasure: The Enforcement of Trespass Legislation Against Persons with Disabilities from Public and Semi-Public Spaces.” Sheldon discussed various places in society where persons with disabilities are excluded such as in shopping malls and parks as well as the legal challenges associated with such exclusion.

Lastly on this panel was SWODS 2019 organizer, Laverne Jacobs, an Associate Professor and Associate Dean (Research & Graduate Studies) at the University of Windsor Faculty of Law. Jacobs’ presentation titled, “Defining the ‘Worthy Participant’: Disability, Accessibility Legislation, and Aspirations of Equality” discussed qualitative research on the experiences of people with disabilities in participating in the development of accessibility standards.

The final panel of the workshop was titled “Disability History and Societal Responses.” Jeff Preston, an Assistant Professor of Disability Studies at King’s University College at Western University, presented on the unique topic of Internet memes. His presentation titled, “Cool Story, Bro: Disability Memetic Histories, Subjectivities and Possibility,” examined how disability presents itself online.

Next,  “Managing Monstrosity: Population Construction and Control in Securitized Space” was presented by Jen Rinaldi, an Assistant Professor at Ontario Tech University, Faculty of Social Science and Humanities and Kate Rossiter, an Associate Professor at Wilfrid Laurier University, Department of Health Studies. These researchers are interested in the concept of monstrosity and its relationship to people with disabilities and institutions.

The final presentation of SWODS 2019 was by University of Windsor Professor Nicole Markotić from the Department of English who discussed “Ageing and Disability in Howl’s Moving Castle.” Markotic described the film as demonstrating mobility issues for the protagonist who is magically transformed into an old woman. However, her age is also valued throughout the film. Often in films, disability or aging characters are seen as abnormal and disabled characters have to be contained or destroyed. Often, growing old is portrayed as a disability to overcome and the effects of aging should be resisted, especially for women. However, Howl’s Moving Castle illustrates a positive or neutral view of aging and disability, which is a refreshing change from the commonly negative tropes represented in contemporary films.

Overall, the first ever SWODS event was a successful enterprise which allowed interdisciplinary scholars to network and facilitate discussions, which ignited new ideas and future research possibilities! The SWODS conference of 2020 is highly anticipated and will undoubtedly generate similar academic conversation around disability.  


Southwestern Ontario Disability Scholars Workshop

On Thursday May 23, 2019, the Law, Disability & Social Change Project and Windsor Law will be hosting the inaugural Southwestern Ontario Disability Scholars (SWODS) Workshop. This workshop will bring together scholars from universities in the region to discuss research respecting people with disabilities from interdisciplinary perspectives.
Please find below a list of the participants, their paper titles and biographies.

Thursday, May 23, 2019
8:30 AM registration and breakfast
9:00am – 4:00pm -Workshop

WHERE
Windsor Law, Farmer Conference Room (room 1111), University & Sunset Avenues

This event is by invitation only.

Find Windsor Law on Google Maps

Paper Titles & Participant Bios

Madeline Burghardt, Assistant Professor, Disability Studies, King’s University College at Western University

“Uncovering stories of ‘difference’: Complicating popular understandings of Canadian nation-building”

Madeline Burghardt has a doctorate in Critical Disability Studies from York University. Her most recent publication is the book Broken: Institutions, Families and the Construction of Intellectual Disability published by McGill-Queen’s Press, which examines the effects of institutionalization on people labelled with intellectual disability and on members of their families. With an interest in the impact of historical and political conditions on lived experiences of impairment and representations of disability, her current research is an exploration of the lived experiences of thalidomide survivors in Canada.

Pamela Cushing, Associate Professor, King’s University College at Western University, Faculty of Disability Studies

“Shaping a Disability Studies that Resonates with Diverse Undergraduates”

Jay Dolmage, Associate Chair, Undergraduate Communication Outcome Initiative (UCOI), University of Waterloo, Faculty of English Language and Literature

“Academic Eugenics”

I am committed to disability rights in my scholarship, service, and teaching. My work brings together rhetoric, writing, disability studies, and critical pedagogy. My first book, entitled Disability Rhetoric, was published with Syracuse University Press in 2014. Academic Ableism: Disability and Higher Education was published with the University of Michigan Press in 2017 and is available in an open-access version online. Disabled Upon Arrival: Eugenics, Immigration, and the Construction of Race and Disability was published in 2018 with Ohio State University Press. I am the Founding Editor of the Canadian Journal of Disability Studies. I am currently Professor of English at the University of Waterloo where I am working to create a more accessible future for higher education.

David Ireland, Assistant Professor, University of Manitoba, Faculty of Law

“The Canadian Jury Trail: Reimagining Jury Composition in an Inclusive Society”

David Ireland graduated from the Faculty of Law, University of Manitoba in 2010 and was called to the Manitoba Bar in 2011. He has practiced criminal law as both Crown and defence counsel and maintains a practice in criminal defence and public law litigation. In 2016 David was appointed to the Faculty of Law at the University of Manitoba where he teaches and researches in the area of criminal law and procedure, evidence law, advocacy and preventing wrongful convictions. He is also the Director of the Robson Hall Innocence Clinic, a live intake clinic conducting pro bono post-conviction legal work. David is also the co-editor of the Manitoba Law Journal annual special edition in criminal law as well as co-editor of the criminal law research website, robsoncrim.com. David’s research focusses on criminal procedure and improving the delivery of criminal justice in Manitoba. David is currently a co-investigator on three SSHRC-funded projects: Understanding Justice: Jury Comprehension of Canadian Judicial Charges in the Criminal Law [PI Richard Jochelson; co-investigators David Ireland; Rod Lyndsay; Amy Desroches; Michelle Bertrand]; Jury Representativeness in Canada: Representative or Not? [PI Michelle Bertrand; co-investigators Richard Jochelson; David Ireland]; and Impervious to Change? A Mixed Methods Analysis of Criminal Sexual Assault Complaint Attrition Rates [PI Jane Ursel; Co-investigators Karen Busby; David Ireland; Marlyn Bennett]. David is also a frequent presenter in the criminal justice community, speaking at conferences for judges, lawyers and law enforcement officers.

Laverne Jacobs, Associate Professor and Associate Dean (Research & Graduate Studies), University of Windsor, Faculty of Law

“Defining the ‘Worthy Participant’: Disability, Accessibility Legislation, and Aspirations of Equality”

Laverne Jacobs is an Associate Professor and the Associate Dean (Research and Graduate Studies) at the University of Windsor, Faculty of Law (Windsor Law) in Canada. She is an administrative law scholar who focuses on social inequality, and particularly inequalities experienced by people with disabilities. Her scholarship aims to bridge the gap between public law jurisprudence and public law realities through empirical inquiry. She takes an interdisciplinary approach to her research, using qualitative empirical research methods from the social sciences. She is particularly interested in ethnography and legal anthropology, and in the intersection of law, norms and informal order. She runs a research and public advocacy project called the Law, Disability and Social Change Project at Windsor Law. Through the Project, she, her colleagues and her students conduct law and policy research, host lectures and events and organize community outreach initiatives such as the Disability and Law Learning Series, a series of law and disability information seminars delivered in Windsor Essex-County. Laverne’s full bio is available at: http://www.uwindsor.ca/law/ljacobs

Ameil Joseph, Assistant Professor, McMaster, School of Social Work

“The subjects of oblivion: subalterity and contemporary technologies of transnational eugenics, sanism, and racial eradication”

Ameil Joseph is an Assistant Professor in the School of Social Work at McMaster University (tenure and promotion to Associated Professor effective July 1, 2019).  He draws on perspectives of critical forensic mental health, postcolonial theory, critical race theory, and critical disability studies in his writing and research. One of the broad areas he has focused on is the confluence of criminal justice, mental health and immigration systems.  He comes to this work with over a decade of experience in the mental health field in areas of assertive community treatment, community-based early intervention, supportive housing, crisis respite, and governance settings.  Ameil has presented across Canada, In the US and in Europe on issues related to racism, critical mental health and social justice and has publications in top journals such as Disability & Society, Intersectionalities, Social Work in Mental Health, Critical Criminology, The Journal of Progressive Human Services, Qualitative Research, Canadian Social Work, and The British Journal of Social Work. Dr. Joseph has been instrumental in the recent establishment of Hamilton’s Anti-Racism Resource Centre.  Ameil is also the author of: Deportation and the confluence of violence within forensic mental health and immigration systems published by Palgrave-MacMillan. A historiographical post-colonial analysis of the practice of deportation in Canada for those identified as “undesirable”.

Jeff Preston, Assistant Professor, Disability Studies, King’s University College at Western University

“Cool Story, Bro: Disability Memetic Histories, Subjectivities and Possibility”

Jeff Preston, Ph.D., is an assistant professor of Disability Studies at King’s University College at Western University. Jeff’s research has been funded through an Ontario Graduate Scholarship (2006-2007 & 2008-2009), a Joseph-Armand Bombardier CGS Masters Scholarship (2007-2008) and a Social Sciences and Humanities Research Council Doctoral Fellowship (2009-2012). Jeff’s first book, “The Fantasy of Disability”, was just published internationally 2016 by Routledge. A long-time advocate and committed public intellectual, Jeff is a past member of the Accessibility Standards Advisory Committee for the Ministry of Community and Social Services and is a current board chair for Jesse’s Journey, and the vice chair – leadership table of the London For All anti-poverty initiative organized by the City of London and the United Way of Elgin & Middlesex.

Jake Pyne, Postdoctoral Fellow at the College of Social and Applied Human Sciences, University of Guelph

“‘Building a Person’: Legal and Clinical Personhood for Autistic and Trans Children in Ontario”

Jake Pyne is a Banting Postdoctoral Fellow at Re.Vision: The Centre for Art and Social Justice at the University of Guelph, where his current research (Dis/Human Others) focuses on the intersection of autistic and trans life. As an advocate in Toronto’s trans community for many years, Jake has worked on projects to improve access to health care, housing and emergency shelter, family law justice, and support for gender independent children and trans youth. Jake’s doctoral research explored thinkable futures for trans youth and brought together transgender studies, critical disability studies, critical autism studies, fat studies, and queer of colour critique.  As of July 2020, Jake will take up a position as an Assistant Professor in the School of Social Work at York University.

Jen Rinaldi, Assistant Professor, Ontario Tech University (formerly University of Ontario Institute of Technology), Faculty of Social Science and Humanities

“Managing Monstrosity: Population Construction and Control in Securitized Space”

Jen Rinaldi is an Assistant Professor in Legal Studies at the University Of Ontario Institute Of Technology. She earned a Doctoral degree in Critical Disability Studies at York University, and a Master’s degree in Philosophy at the University of Guelph. Her research takes up how non-normative bodies are read, marked, and produced in and through socio-legal discourse. Rinaldi’s interest in abject embodiment ranges from the crippled (or disabled, and especially persons deemed intellectually disabled), to the Mad (persons positioned against and within mental health regimes), to the fat (bodies framed as obese and discriminated against in the interest of public health), to the queer and trans (persons who identify as members of LGBTQ+ communities). She is most fascinated by the task of uncovering law’s affective relationship with embodied subjectivity-how embodied subjects negotiate, are impacted by, and resist bio-political axes invested in their formation.?

Kate Rossiter, Associate Professor, Wilfrid Laurier University, Department of Health Studies

“Managing Monstrosity: Population Construction and Control in Securitized Space”

Kate Rossiter is an Associate Professor in the Department of Health Studies at Wilfrid Laurier University’s Brantford campus.  For the past 5 years, Kate’s research has centred around developmental disability and experiences of institutionalization and institutional violence with particular focus on the Huronia Regional Centre.  She is interested in the structural conditions of violence engendered by and within putative care organizations.  Emerging from this work, Kate has co-authored “Punishing Conditions:  Institutional Violence and Disability” with Jen Rinaldi.   Kate’s background combines the critical social scientific study of public health and embodiment with theatre and performance studies.  Kate lives in Brantford, Ontario with her partner and two children.

Tess Sheldon, Assistant Professor and Externship Director, University of Windsor, Faculty of Law

“Disability Erasure: The Enforcement of Trespass Legislation Against Persons with Disabilities from Public and Semi-Public Spaces”

Tess Sheldon is an Assistant Professor and the Externship Director at the Faculty of Law at the University of Windsor.  She is also a lawyer and has practiced exclusively with Ontario’s legal clinic system, including at ARCH Disability Law Centre and Justice for Children and Youth.

Nicole Markotić, Professor, University of Windsor, Department of English 

“Ageing and Disability in Howl’s Moving Castle”

Nicole Markotić teaches Canadian Literature, Disability Studies, Creative Writing, and Children’s Literature at the University of Windsor. She is author of eight books, including her critical book, Disability in Film and Literature (2016) and her YA novel, Rough Patch(2017). She has edited a book of essays on Robert Kroetsch (2017), and co-edited a collection of essays on film and disability, The Problem Body: Projecting Disability on Film(2010). She is currently working on a book about representations of disability in children’s literature.

Meeting with UN Special Rapporteur on the Rights of Persons with Disabilities

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by Cynthia Brown, LLM Candidate, Windsor Law – April 9, 2019

Ms. Catalina Devandas Aguilar, the United Nations Special Rapporteur on the Rights of Persons with Disabilities, was in Canada from April 2, to April 12, 2019, for an official visit at the invitation of the federal government. On April 3, 2019, Professor Laverne Jacobs, Professor Tess Sheldon and Cynthia Brown, LLM Student from Windsor Law had the privilege of participating in a telephone meeting with Ms. Devandas Aguilar, and with representatives from several other organizations dedicated to disability issues from across the country. Representing the Law, Disability & Social Change Project at the University of Windsor, Faculty of Law, Professor Jacobs spoke on access to justice issues with respect to access to legal aid for people with disabilities and Bill C-81, the proposed federal accessibility legislation (Accessible Canada Act). She highlighted two significant legal cases that have put the concept of access to justice for people with disabilities to the test – Elizabeth Portman’s case and Judy Gayton’s case. She stated that legal aid boards and commissions are usually given the discretion to determine the areas of law in which they will provide legal aid and the process they will follow to decide if applicants are successful. They should be required to consider human rights principles and accommodate people with disabilities to the point of undue hardship in doing so.

Other represented organizations included: the Canadian Association of the Deaf, Communication Disabilities Access Canada, Canadian Association of Community Living/Community Living Toronto, Canadian Council on Rehabilitation and Work, Canadian Federation of Library Associations, British Columbia Aboriginal Network on Disability Society (BCANDS), People First of Canada and ARCH Disability Law Centre.

The meeting was very informative and resulted in a number of thoughtful questions from Ms. Devandas Aguilar.  She stated that, at the end of her 10-day visit on April 12th, she will hold a press conference to present the highlights of her visit, along with a mission statement with preliminary findings. Her full report will be presented in March of 2020.


Update:

Read our submission to the UN Special Rapporteur on the rights of persons with disabilities:

Written Submission to the UN Special Rapporteur (Apr2019) (MSWord)

Written Submission to the UN Special Rapporteur (Apr2019)  (PDF)

Final Report of UN Special Rapporteur on Disability (Dec2019) (PDF)