Law, Disability & Social Change

The following are a summary of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2020, Issue 3).

This issue of our digest covers decisions from the Human Rights Tribunals of British Colombia, Ontario, Nova Scotia, New Brunswick, Newfoundland, PEI, Alberta, the Northwest Territories, Quebec, and the Canadian Human Rights Tribunal that were rendered during the month of July 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

McLaren V Howlett, 2020 HRTO 613
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Date Issued: July 9, 2020

This decision involves an application filed by the applicant, Rita McLaren, with respect to housing because of a disability and receipt of social assistance contrary to the Human Rights Code, RSO 1990, c H. 19, as amended (the “Code”). The respondent submitted that the Application be dismissed pursuant to s. 21 (1) of the Code by arguing that the right to equal treatment with respect to the occupancy of a residential accommodation is not infringed by discrimination where the residential accommodation is a shared accommodation. The allegations arose when the respondent provided Ms. McLaren with a note advising her that she was required to move out of the house due to her physical disability and their inability to provide her with supports or accommodation.

Ms. McLaren has an auto-immune illness which affects her mobility so that she requires a cane/walker, or the use of railings and counters to get around. Ms. McLaren left an abusive relationship and was able to find housing in the respondent’s house with the help of social supports. The events of this case transpired over a period of four days where the applicant was living in the house. The respondent, applicant, and two tenants who lived in the house at the time in question (“LW” and “AL”) gave testimony. On May 23, 2018, Ms. McLaren met with the respondent and the property manager of the house to view a room in the house which was available for rent. The property has 5 bedrooms exclusively rented out to women. A number of house rules are posted around the house with the intent of ensuring a quiet, secure and clean space and the housing arrangement includes sharing common spaces including the bathroom, kitchen and living room. The property manager also lived in one of the rooms in the house and owned a one-percent share in the house at the time (given to her as a retention incentive in her position as property manager). Ms. McLaren testified that she was pleased with the housing and moved in on May 25, 2018. Although she was unable to gain access to the basement, she had no issues since her room was on the main floor.

The respondent testified that he began receiving multiple complaints from the other tenants as soon as Ms. McLaren moved in. The property manager was away from the date Ms. McLaren moved in until after she left on May 29, 2018. The respondent testified that it was up to the property manager to address the complaints in her absence. He testified that complaints included the applicant’s lack of cleanliness, aggressive demeanour and her failure to properly lock the door on multiple occasions, making the other tenants feel unsafe. LW and AL testified about Ms. McLaren’s behaviour and that they had reported her to the respondent. On the morning of May 29, 2018, the respondent slipped a note under the applicant’s door stating that “it would appear that [the Applicant’s] needs are greater than originally perceived,” and for that reason, the residency would be terminated as of June 1, 2018. Furthermore, the note indicated that the respondent had “been in touch with [the women’s shelter] and they are aware that we are not physically capable of providing the type of support that a person of your physical impairments requires”. At the hearing, the respondent acknowledged this as wrong and apologized to the applicant when he testified for suggesting the applicant’s disability was the reason why her tenancy was terminated as opposed to addressing her behavioural concerns.  

The respondent applied to have the application dismissed by arguing that the property manager was responsible for addressing the conduct, and in any case, shared the accommodations with the tenants. However, the Tribunal found that a 1% shareholder was not considered to be the owner of a residential accommodation within the meaning of the code, and that the property manager was a tenant prior to being given the share in the property. There was no evidence that her role or financial responsibilities regarding the property had changed when she was given the share. Therefore, the Tribunal found s. 21(1) as not applicable. In order to make a finding of discrimination, the Tribunal only needed to conclude that the applicant’s disability was a factor—rather than the primary reason—in the decision to end Ms. McLaren’s tenancy. The letter provided to Ms. McLaren was an explicit indication that her disability had been a factor in the termination of her residence. The Tribunal found the tenant’s testimony of Ms. McLaren’s behaviour to be credible but also found the respondent’s evidence regarding the nature of the complaints put forward by the tenants to be vague. The Tribunal found some of the conduct which the respondent found to be disruptive so enough to justify the termination of her tenancy was caused in part by Ms. McLaren’s disability. Therefore, the respondent was found to have breached s. 2(1) of the Code in how he advised the applicant of the termination of her tenancy. The Tribunal also found that the applicant’s disruptive conduct would have resulted in the termination of her tenancy, regardless of her disability. Therefore, t Application was allowed, and the Tribunal ordered the respondent pay the applicant $1,500 for injury to her dignity, feelings and self-respect as well as post-judgement interest at the rate of 3%.

Lawson v McMaster University, 2020 HRTO 627
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Date Issued: July 20, 2020

This decision involves an application filed by a student, Christopher Lawson, against the respondent University (“University”) for discrimination in the provision of goods, services and facilities on the basis of a disability and association with a person identified by a protected ground, contrary to the Code. Mr. Lawson has arthritis and uses medical marijuana to treat his condition. He alleged that he was protesting the impact of a smoking ban on people who use the University’s facilities and who use marijuana as treatment for their disability when he was harassed on two occasions. Mr. Lawson alleges that he was “immediately confronted” by two campus security officers during the first of the two protests and asked to identify both himself and the people he was with. He maintained that his rights were abused because the security officers asked him what he was smoking and to wait until their boss, the personal respondent, Joseph Zubek, came. Mr. Zubek is a Staff Sargent with McMaster Security Services.

When Mr. Zubek arrived, he asked the applicant for his ID and the name of the person who was accompanying Mr. Lawson, without indicating a reason for needing this information. Mr. Lawson asserted that Mr. Zubek “continued to grill” him about what he was doing and who was with after Mr. Lawson explained his medical reason for smoking marijuana and after his fellow protestor had refused to identify herself. At a second protest, the applicant indicated that protesters were holding signs inside the McMaster University Cafeteria protesting the banning of a “root of medical cannabis administration” and that people with disabilities should be accommodated and not banned. Mr. Lawson alleges that the security officers who arrived advised the group that they needed a permit, and after refusing to identify themselves, they were escorted out of the building.

The respondents submitted that the applicant provided no evidence of discrimination and maintained that after the first protest since Mr. Lawson provided the respondent with his medical marijuana license, Mr. Zubek and the other security officers left the scene without Mr. Lawson suffering any “disadvantageous or discriminatory” treatment. Furthermore, the respondents noted that the second protest took place at the McMaster University Medical Centre, which is a building owned by McMaster University but leased to Hamilton Health Sciences, a separate entity from McMaster University. The respondents noted that the security officers at the second protest were provided by Hamilton Health Sciences Security Services. The applicant provided no details of the identity of the security officers at the second protest.

The Tribunal concluded that the Application had no reasonable prospect of success since an applicant’s belief—without proper convincing evidence—no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. The Tribunal found the applicant to have failed in pointing to any evidence that could reasonably support his allegations that the respondents discriminated against him based on his disability. The Tribunal further found nothing that could reasonably be understood as discriminatory treatment in the officers’ calling for their superior to further investigate the protest. As for the second protest, the Tribunal found that the applicant failed to provide evidence suggesting the respondents were responsible for the conduct of the security officers. Therefore, the Tribunal dismissed the Application for having no reasonable prospect of success.

BRITISH COLUMBIA

NT by CT v. Board of Education of FV School District (No. 2), 2020 BCHRT 150
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Date issued: July 22, 2020

This decision involves an application on behalf of a child with a disability. CT is the mother of NT who is a 13-year-old child with disabilities. CT filed a complaint on NT’s behalf in 2016, alleging that the School District discriminated against NT in his education regarding two separate school programs. The parties entered into a settlement agreement in 2018 to resolve the complaint where the District agreed to provide NT with certain specific education supports and payment for general damages. Consequently, CT withdrew the complaint, signed a release and signed an agreement to use the School District appeal process, specifically a s. 11 appeal, for resolving any future issues that “significantly affect the education, health or welfare of [NT] prior to pursuing proceedings in any other forum.”

Two months after the settlement, CT alleged that NT was prevented from joining gym activities and that NT’s teachers were not following the recommendations about his disability which had an adverse effect on NT. Subsequently, CT withdrew NT from the School District, enrolled him in an independent school and filed a human-rights complaint.

The School District applied to have the Human Rights Tribunal (Tribunal) dismiss the compliant since CT had not initiated a s. 11 appeal before filing the complaint with the Tribunal. The Tribunal denied this application since NT was no longer enrolled as a student in the School District which meant the s. 11 appeal was not appropriate. The School District applied to have the Tribunal reconsider the Original Decision based on NT re-enrolling as a student in the District which meant the s. 11 process was available to him. The Tribunal has discretion under section 27(1)(d)(ii) to dismiss complaints where it does not further the purposes of the Code to proceed, one circumstance being where the parties have entered into a settlement agreement that resolves the complaint.

The key issue in this human rights proceeding was whether the s. 11 appeal process would deal appropriately with the substance of the complaint or effectively remedy the issues “such that it no longer furthers the purpose of the Code to proceed with a complaint at this Tribunal.” The Tribunal found that it was too early to determine whether the s. 11 appeal process would address NT’s complaints. Therefore, the Tribunal denied the application to dismiss CT’s complaint. However, if CT wanted the Tribunal to hear the complaint, CT would need to first file a s. 11 appeal by August 7, 2020. If she refuses, the Tribunal may dismiss the complaint on the basis that “it does not further the purposes of the Code”.

Foley v. Abbotsford Police Department, 2020 BCHRT 137
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Date issued: July 7, 2020

Jonathan Foley filed a human rights complaint against the Abbotsford Police Department (Department) as he alleged that the Department discriminated on the basis of mental disability in the area of a service available to the public, contrary to s. 8 of the Human Rights Code, RSBC 1996, c 210 (Code). Specifically, Mr. Foley stated that the Department dismissed his request for them to conduct a welfare check on members of his family based on their perception of his mental disability, by releasing his contact information to a family member and by their refusal to provide him with information from his own file. The allegations were denied by the Department which applied to dismiss the complaint under subsection 27(1)(a), (c) and (f) of the Code.

Mr. Foley requested a welfare check by email for the Department to check on various members of his family, none of whom resided in Abbotsford. His email also included various attachments dealing with a fraud complaint to the Canadian Anti-Fraud Centre. The constable responding to the email had “difficulty understanding the information Mr. Foley had sent” and reviewed Mr. Foley’s police records in an effort to better understand the situation. The constable’s review showed that Mr. Foley had filed different legal proceedings against a number of organizations, contacted the Department and the RCMP on several occasions. The constable returned Mr. Foley’s call and referred to psychosis, drug use and suggested that he contact his doctor. Mr. Foley found this response offensive and abusive. When Mr. Foley returned the constable’s call, he requested a review of all of the reports in his police records. The constable informed Mr. Foley that he would have to obtain his police records through a freedom of information request.

Despite Mr. Foley’s family members not being within the Department’s jurisdiction, the constable contacted Mr. Foley’s mother to ensure nothing was wrong. His mother advised that the family was alive and well, but she was concerned about her son’s mental health. Mr. Foley confirmed that he received a phone call from his mother who advised him that she heard from the Department. Mr. Foley took issue with the Department releasing his telephone number to his mother as he is estranged from his family.

The Department had the burden to demonstrate that Mr. Foley had no reasonable prospect of success at a hearing. Mr. Foley was not required to prove his complaint. The Department did not dispute that Mr. Foley had a mental disability. Rather, it argued that “there is no reasonable prospect that he would succeed in establishing that he was treated adversely” for two reasons. First, the Department could have declined to conduct a welfare check since Mr. Foley’s family lived outside of their jurisdiction, however, the constable conducted the check. Second, it argued that the comments the constable made in referencing Mr. Foley’s mental health “were a reasonable component of carrying out his duty and as such cannot constitute adverse treatment for the purposes of the Code.” Furthermore, the Tribunal found that although the constable’s comments offended Mr. Foley, there was no reasonable prospect that Mr. Foley could establish that the constable’s mention of impaired thinking and his doctor constituted discrimination in all of the circumstances of the case. Additionally, the Tribunal found that there was no reasonable prospect that Mr. Foley could establish that the constable giving Mr. Foley’s mother his telephone number, which resulted in her contacting him, directly constituted discrimination. Specifically, “not every interaction that a person experiences as negative amounts to discrimination.” Ultimately, the Tribunal granted the dismissal under s. 27(1)(c) having been persuaded that there was no reasonable prospect that a Tribunal member would conclude this interaction is discrimination under the Code at a hearing.

Khabazian‐Isfahani v. BC Ministry of Finance, 2020 BCHRT 140
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Date issued: July 7, 2020

Iraj Khabazian-Isfahani (applicant) filed a complaint that alleged that the Ministry of Finance denied him fuel tax refunds and an appeal of the Respondent’s decision respecting the same, contrary to s. 8 of the Code. Section 23 of the Motor Fuel Tax Act, R.S.B.C. 1996, c. 317 (Act) provides that persons with disabilities may be eligible for a refund of the motor fuel tax paid, up to $500 maximum per calendar year. The Complainant was advised that his account with the Fuel Tax Refund Program was closed due to inactivity and that he would have to reinstate his registration. The Complainant tried to appeal his decision but did not meet the timeline requirement for filing an appeal and was unaware that the BC Fuel Tax Credit “was limited to only the five previous years.” The Complainant had “significant cognitive deficiencies in executive function from brain injuries” which included “deficits in attention, concentration, memory and critical thinking” which affected his organization and his ability to manage deadlines. 

The respondents denied discrimination and applied to dismiss the complaint under s. 27(1)(c) of the Code. Specifically, the respondents submitted that it had a non-discriminatory and reasonable explanation for its actions based on the time limits for filing an application prescribed by the Act. As well, the respondent argued for the complaint to be dismissed since it “represents a direct attack on legislation and does not concern a ‘service’ within the meaning of the Code.”

By contrast, the Complainant submitted that he had established that he has a disability that made out the preliminary case of discrimination and that he had been adversely impacted by the refusal by the Respondent for accommodation and that his disability was a factor in the adverse treatment.

The Tribunal found that it was undisputed that the Complainant had a disability and that his claim was denied as he was out of time. It was likewise undisputed that his appeal was not considered since it was filed late. The Complainant submitted that his mental disability was a factor in his inability to meet the timelines. The Tribunal decided that the respondent did not provide a reasonable non-discriminatory explanation for its conduct and that its reliance on the Act not providing discretion to vary timelines was unreasonable. Ultimately, the Tribunal was not convinced that there was no reasonable prospect of success that the Complainant would be able to prove his mental disability was a factor in the respondent’s decision to deny his appeal and claim for not meeting timelines. Consequently, the respondent’s application to dismiss the complaint under s. 27(1)(c) was denied. 

Jorgensen v. Strata Plan No. 1144, 2020 BCHRT 142
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Date issued: July 9, 2020

A complaint was filed by J. Fay Jorgensen against the owners of Strata Plan No. 1144 (Strata), for alleged discriminated against her contrary to s. 8 of the Code in the provision of a service based on physical disability by failing to address an accessibility issue. Notably, there was no elevator access from units on the ground floor, only floors two to six were accessible by elevators and ramp style walkways. Instead, to access the ground floor, fourteen concrete stairs needed to be used or one would need to use a grassy area to access two stairs to the back patios. Ms. Jorgensen’s unit was on the ground floor and she had accessibility needs after she sustained an injury from a fall. Ms. Jorgensen had proposed numerous solutions to improve accessibility for ground floor units during the Strata annual general meetings. After Ms. Jorgensen suffered a stroke which significantly affected her balance and walking, she filed a complaint and sought an order requiring construction of a walkway to address her accessibility needs. The Strata passed a resolution to construct an accessible lift yet did not respond to Ms. Jorgensen’s inquiries of when the lift would be completed. The Strata provided no information on the current status of the installation of the lift nor any timeline for completion.

The Strata denied discrimination and stated it had addressed the accessibility issue by approving a vertical lift and elevator pad be constructed. Subsequently, it filed an application under ss. 27(1)(c) and (d)(ii) of the Code to dismiss the complaint. The respondent had the burden to demonstrate that the complaint had no reasonable prospect of success.

The Strata argued that it did not know of Ms. Jorgensen’s disability whereas Ms. Jorgensen argued that the Strata should have known she had a disability since she approached the Strata about the accessibility challenges she was facing. As well, “the Strata’s assertion that Ms. Jorgensen had no reasonable prospect of proving it knew or ought to have known of any disability must fail” since Ms. Jorgensen’s complaint asserted that she had a physical disability which impacted her mobility. There was also direct evidence from Ms. Jorgensen’s physician that she had significant difficulty with balance and walking which supported her claim that she could not use the stairs.

The Tribunal found that the lift had not yet been constructed and there was no alternative accommodation proposed by the Strata in the interim. Therefore, the Tribunal was not persuaded that “it is reasonably certain that the Strata would establish that it had a bona fide and reasonable justification for taking no steps to explore accommodating Ms. Jorgensen while awaiting installation of the lift.” The Tribunal found that the Strata did not provide any information about the timing of the lift construction, and thereby was not persuaded that Ms. Jorgensen’s conduct interfered with the accommodation process such to conclude that her complaint has no reasonable prospect of success.

Finally, the Strata applied to dismiss the complaint based on the passing of the resolution to construct the lift “remedied any discrimination.” However, the Tribunal found that the allegation that Ms. Jorgensen continued to experience an adverse impact of her health by using the stairs or uneven grass to access her unit was not remedied by the prospective lift construction. The Strata argued that it “fulfilled any duty to accommodate owed Ms. Jorgensen by its moving forward with the lift.” Ultimately, the application to dismiss the complaint was denied.

Brezinski v. City of Vancouver, 2020 BCHRT 148
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Date issued: July 21, 2020

Michelle Brezinski filed a complaint against the City of Vancouver, specifically the Board of Parks and Recreation (City) for failure to respond to her accommodation request which she alleged constituted discrimination on the basis of sex and mental disability contrary to s. 13 of the Code. Ms. Brezinski advised the City that she had Post Traumatic Stress Disorder (PTSD) which was related to a workplace incident and she provided a doctor’s letter that stated that she is “vulnerable to recurrence in situations reminiscent of workplace exposure to danger.” The Tribunal understood this to mean that her PTSD made her sensitive to perceived threats to her safety. Ms. Brezinski asked that her former supervisor be “made to stop ignoring her safety concerns and manage aggressive patrons” as her workplace was worsening her PTSD. The City argued that Ms. Brezinski made no specific requests for accommodations, rather she raised concerns about her personal safety in the workplace. When Ms. Brezinski met with a Human Rights manager and union representative, she reported that her PTSD was being aggravated and made several requests. This included requests for the City to inform her supervisors about her PTSD and to validate the safety concerns she raised. The possibility of transferring Ms. Brezinski to another facility was raised, however, she would only consider it if the City could guarantee her enough hours. By contrast, the City contested that Ms. Brezinski made any requests for accommodations and instead argued that Ms. Brezinski stated her PTSD was managed and the City did not need to know anything else to support her. The respondent denied discrimination and filed an application to dismiss the complaint under s. 27(1)(c).

In this case, Ms. Brezinski argued that the City knew or should have known that she had PTSD which impacted her feelings of safety and that she characterized the ongoing issues with the patron as something that made her feel unsafe. Ms. Brezinski argued that if the City had fulfilled their duty to accommodate, she would not have had to go on medical leave. The Tribunal was not persuaded that there was no reasonable prospect that Ms. Brezinski could succeed in establishing that she experienced an adverse impact on her employment by which her disability was a factor. Moreover, the Tribunal found that the City did take appropriate steps to address Ms. Brezinski’s concerns. However, the City argued that no duty to accommodate was triggered because Ms. Brezinski did not seek accommodations. Ultimately, the Tribunal denied the application to dismiss the complaint on the basis that the City did not persuade the Tribunal that there was no reasonable prospect of success. Finally, the Tribunal encouraged the parties to avail themselves to mediation services to resolve the dispute without the expense and time of a hearing.

ALBERTA

Sherick v The City of Calgary, 2020 AHRC 56
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Date Issued: July 22, 2020

Brent Sherick, the complainant, filed a complaint alleging discrimination in employment on the ground of physical disability contrary to section 7 of the Alberta Human Rights Act.

The complainant alleged that the respondent failed to accommodate the complainant’s disability in that it made insufficient efforts to find him alternative work after he became incapable of performing his permanent position due to medical symptoms. The complainant also alleged the respondent breached his rights by failing to inform Great-West Life of bargained wage increases for the CSO position.

In regard to the extent of the accommodation efforts made by the respondent to find the complainant an alternative position, he alleged that the respondent viewed him as low-priority and made little or no effort to find him alternative work. He also submitted that the respondent had an obligation to find work that did not include regular Sunday shifts on the basis of his religious beliefs. The respondent submitted that its ability to find the complainant alternative work was hampered due to his part-time status, limited education and numerous other factors.

The Tribunal held that the information taken as a whole did not establish that the respondent failed to meet its obligation to accommodate the complainant. The complainant’s position was not entirely clear and thus difficult to evaluate. Furthermore, the Tribunal held that the alleged failure of the respondent to inform GWL of any wage increases had no effect on his benefits, therefore there is no basis to the complainant’s claim. The Director’s decision to dismiss the Complaint was upheld.

MARITIME PROVINCES
Newfoundland and Labrador

Maharajh v Atlantic Offshore Medical Services Limited, 2020 CanLII 49888 (NLHRC)
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Date of Decision: July 14^, 2020

The Applicant, Matthew Maharajh, filed an application alleging discrimination on the basis of employment contrary to s. 14 of the Human Rights Act, SNL 2010, c H-13.1. (the “Code”). Mr. Maharajh was diagnosed with Ewing’s Sarcoma in 1999 – a type of bone cancer in the spine that required treatment via surgery, chemotherapy and radiation therapy. His pain was treated with morphine, codeine, oxycontin and most recently in 2013, medical marijuana for chronic pain, insomnia and anorexia. In 2014, Mr. Maharajh sought employment with the respondent, Atlantic Offshore Medical Services Limited and was offered as a Senior Occupational Health Nurse at the Sunrise Site, contingent on a pre-employment drug screen. Prior to attending the screening, Mr. Maharajh provided the respondent with documentation of his medical marijuana license. Mr. Maharajh tested “non-negative” for the presence of THC in the drug screen. The Applicant was told that his “non-negative” drug screen would be referred to the Respondent’s Medical Review Officer (MRO) for verification of the result who told the applicant that the official result would be negative but that the employer may be advised of the possible safety issue. The respondent disclosed the test results to BSS and Huskey (to which the Respondent was a subcontractor of) as a possible safety risk despite showing a negative result. The Applicant was advised the next day that there was no position for him, and he was refused access to the Sunrise Site. The respondent claimed that the reason the applicant was disqualified from employment was that he did not have access to the Sunrise Site. The Applicant alleges that he was discriminated against because of his disability.

At the core of this Board of Inquiry decision was if the Complainant could establish that a prima facie case of discrimination had occurred against them and if the Respondent could establish that the requirement for employment was a Bona Fide Occupational Requirement/Qualification (“BFOR/Q”) and that it could not reasonably accommodate the Complainant. At the hearing, the Complainant was able to successfully establish that there was an inextricable link between his disability and treatment and the reason he was not offered employment with the Respondent. The Meiorin Test was established by the Supreme Court of Canada in 1999. This test is used to determine if a prima facie standard of discrimination is a BFOR/Q. Using this test, it was determined that the Respondent had a legitimate work-related purpose for this standard which was to protect itself from litigation from possible safety concerns arising. However, the application of the test revealed that the Respondent did not take reasonable steps to accommodate the Complainant’s disability such as conducting the Fitness for Work Assessment for the position in question. The Respondents were also unable to establish that any other means of accommodation for the Complainant would result in undue hardship for the company.

QUEBEC

There are no relevant decisions for this month.

NWT

There are no relevant decisions for this month.

CANADIAN HUMAN RIGHTS TRIBUNAL

There are no relevant decisions for this month.