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
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.
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.
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.
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
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
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
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.
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.
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)
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
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
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
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
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.
Law, Disability & Social Change 