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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Access Case Brief Here

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.

Access Full Decision Here.

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.

Access Full Decision Here.

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.

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