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 and that were rendered during the month of June, 2018. 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 (2L), Valeria Kuri (2L), Maggie Shi (3L)- Windsor Law
July 6, 2018
Customer v Restaurant and Manager (2018 BCHRT 138)
Date Issued: Jun 7, 2018
The complainant has concurrent mental illnesses. He alleged that he was denied service at a restaurant because of his therapy dog that provides necessary assistance to him at all times. This incident formed the basis of his allegation of discrimination. The complaint was ultimately dismissed. The adjudicator held that it was possible that the incident that the Customer and his friend described may have occurred one morning when they went to a restaurant to have breakfast but found that on a balance of probabilities, the evidence did not support their allegations that the incident described occurred at that Restaurant. However, the Tribunal commented extensively on stigma and marginalization, making the observation that testimony submitted in this case affirms inaccurate yet persistent misapprehensions of the mentally ill in broader community. An excerpt of the complainant’s testimony of his lived experience of abuse, exclusion and fear was reproduced to promote awareness and educate the public.
Okanagan Valley Association of the Deaf obo others v St. John Society and another (2018 BCHRT 150)
Date Issued: Jun 22, 2018
Okanagan Valley Association (“Association”) of the Deaf filed a complaint against St. John Ambulance (“SJA”) on behalf of the class of individuals who are D/deaf or hard of hearing for having experienced adverse impact because of SJA’s ongoing practice or policy of refusing to fund Sign language interpretation for its courses to accommodate students. The Tribunal decided that the Association’s late-filed complaint should proceed and accepted it on the basis that SJA’s alleged discriminatory actions constitute a continuing contravention and that it was in the public’s interest to accept it. To arrive at this decision, the Tribunal distinguished a body cases for the proposition that “a mere repetition of a previous request, which elicits the same denial, does not constitute a continuing contravention” and relied on case law that makes an allegation of continuing contravention possible where there is ongoing state of discriminatory condition.
Worker v Employer and Manager (2018 BCHRT 140)
Date Issued: Jun 12, 2018
The complainant, who has several mental disabilities, filed a complaint against his employer concerning his termination for alleged discrimination. His late-filed complaint was ultimately not accepted by the Tribunal. This decision was primarily based on evidence that he was sufficiently functional to pursue other forms of redress and therefore, his disabling condition, which he claimed to be the main reason for his delay, did not prevent him from filing a human rights complaint to attract public interest.
Weekes v Boudreau (2018 HRTO 741)
Date Issued: June 4, 2018
The applicant, Ms. Weekes filed an application under the Human Rights Code, R.S.O. 1990, c. H.19, alleging discrimination with respect to accommodation in housing because of race, colour, ancestry, place of origin, citizenship, ethnic origin, family status, marital status, disability, age, association with a person identified by a Code ground, and reprisal. The applicant claimed that the respondents, her neighbours, were spreading rumours that she has a mental health disability. The applicant claimed that the neighbours had called her “crazy” and this term was mentioned to describe her in a number of police reports.
The primary issue in this case was whether the relationship between the applicant and the respondent fell under the social area of “accommodation”, set out in the Code. Subsection 2(2) of the Code lays out specific relationships where the Code can apply to ensure freedom from harassment in accommodations.
The Tribunal found that applicant was an occupant of housing; however, the respondents who are her neighbours were not in the categories of persons named under subsection 2(2) of the Code as they are not categorized as landlords, landlord agent or an occupant of the same building. The application was therefore, dismissed.
Kalkat v The Merchant (2018 HRTO 759)
Date Issued: June 7, 2018
This case concerns 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 his laptop had been damaged after it was left at the respondent’s establishment.
The Tribunal stated that in order to fall within the Tribunal’s jurisdiction, an application must contain allegations that connect a respondent’s conduct to one or more prohibited grounds of discrimination. The Tribunal held that the applicant’s submissions deal with allegations of property damage but failed to point to any connection between this treatment and a ground for discrimination mentioned in the Code. The Tribunal concluded that the application was not within the Tribunal’s jurisdiction.
Sprague v Maple Leaf Sports and Entertainment (2018 HRTO 764)
Date Issued: June 8, 2018
The applicant alleged that he is a person with a disability and required accommodation for seating at a facility operated by the respondent. The applicant alleged that the respondent charged him more for his accessible seat than other “non-accessible” seats nearby. The respondent denied the allegations and provided an explanation for what was said to have occurred.
The applicant sought an interim remedy to order the respondent to stop charging more for certain accessible seating. In order for an interim remedy to be granted, it is necessary to have: (1) a detailed description of the order (2) one or more signed declarations by people with firsthand knowledge of the issue and (3) a balance between the harm and convenience of granting an interim remedy that would be just and appropriate in the circumstance.
The Tribunal held that an interim remedy would not be granted. First, it was not clear that the application had merit. Second, the balance of harms and convenience did not favour granting the interim remedy request. Finally, it would not be not fair and just to do so. This case will continue on with the Tribunal.
Guillemette v Bell Technical Solutions (2018 HRTO 766)
Date Issued: June 8, 2018
The applicant in this case alleges discrimination with respect to employment because of disability. The Tribunal sent the applicant a Notice to Dismiss, inviting the applicant to make submissions on the issue of whether the respondent is covered by the jurisdiction.
The Tribunal found that the work performed by the employees, including the applicant, remains an integral part of Bell’s core federal undertakings in telecommunications. The respondent is a federal agency and falls outside of the Tribunal’s jurisdiction.
Moodie v Workplace Safety and Insurance Board (2018 HRTO 775)
Date Issued: June 12, 2018
The applicant in this case alleges discrimination with respect to employment because of disability. The applicant had identified WSIB as the respondent, alleging that WSIB allowed for her continued torture in the workplace. The applicant was asked to clarify who they considered to be the respondent to their application.
The Tribunal concluded that this application would be outside the jurisdiction of this Tribunal. In its reasoning, the Tribunal emphasizes that the doctrine of judicial immunity prohibits legal proceedings against judicial actors based on their role as adjudicators or decisionmakers. The Tribunal found that WSIAT is protected by the doctrine because it is considered to be a neutral third party that determines disputes between parties. For these reasons the application was dismissed.
Hall v Ontario (Community Safety and Correctional Services) (2018 HRTO 778)
Date Issued: June 13, 2018
The applicant in this case alleges that the respondent discriminated against him on the basis of disability. He asserts that he was ill, experiencing “severe opiate withdrawal” when he was admitted to a correctional facility of the respondent. The primary complaint is that the doctor who was to administer the medication the applicant was receiving at the time was rarely available and that he sometimes had to wait over 24 hours between doses.
The Tribunal found that the treatment and decisions from the respondent’s health professionals were not based on the applicant’s disabilities in any arbitrary sense, or anything other than their sincere medical opinions about what he required. The simple fact that the applicant felt as though the respondent’s doctors were treating him differently did not constitute a violation of the Code. Accordingly, the application was dismissed as having no reasonable prospect of success.
Supreme Court of Canada (SCC)
Canada (Canadian Human Rights Commission) v Canada (Attorney General) (2018-SCC 31-2018-06-14)
Although it does not deal directly with disability, the following decision has implications for those who use human rights tribunals, a population that includes many people with disabilities. The result of this case is that it requires challenges to the legislation of the federal Human Rights Act and likely other human rights legislation in the country to be taken through the route of a Charter challenge, which is generally more costly. The following summary has been taken from the SCC website :
“This appeal concerns the dismissal of complaints under the Canadian Human Rights Act. R.S.C. 1985, c. H-6 (“CHRA”), that were dismissed by the Canadian Human Rights Tribunal in two decisions. Said complaints alleged that the “legislative entitlements to registration under the Indian Act, R.S.C. 1985, c.I-5, were discriminatory practices prohibited by the CHRA. Two issues arose; whether defence is owed to a human rights tribunal interpreting its home statute; and whether the Tribunal’s decision dismissing the complaints as “direct attacks on legislation” was reasonable. All complaints arose from the effects of “enfranchisement” enshrined in the Indian Act prior to 1985 (stripped individuals of status and prevented their children from registering as status “Indians”). Although parliament has ended enfranchisement and enacted remedial provisions, the complainants challenge the sufficiency of these measures, claiming their children continue to face discrimination. Complaints were heard by the Tribunal separately, and in both decisions, the Tribunal decided that the complaints were “a direct attack on the Indian Act”. The Tribunal decided that in order to legitimize these claims (in order for the Tribunal to respond), the complainants needed to demonstrate that the legislative provisions “fell within the statutory meaning of a service”. After thorough review, the adjudicators in both decisions conclude that the legislation was not a service under the CHRA and dismissed the complaints. The Federal Court and Federal Court of Appeal found the Tribunal decisions to be reasonable and were upheld. The Supreme Court of Canada dismissed the appeal.”