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 4)

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 August 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

Butler-Henderson v. 2363647 Ontario Inc. o/a Pentagram Bar & Grill, 2020 HRTO 686
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Date Issued: August 11, 2020

This Application involves an allegation of discrimination with respect to goods, services and facilities because of disability, contrary to the Human Rights Code, RSO 1990, c. H. 19, as amended (“Code”). The applicant, Ms. Butler-Henderson, alleged that the respondent’s employee refused her access to the restaurant’s washroom because of the applicant’s disability. The Respondents failed to respond to both the Application and the Tribunals’ direction to file a Response. The Tribunal issued an interim decision on May 7, 2018, 2018 HRTO 605, informing that the Tribunal was satisfied that the respondent had received notice of the proceedings, and concluded that: a) the respondents were deemed to have accepted all the allegations set out in the Application; b) the respondents were deemed to have waived all rights to notice or participation in these proceedings, and; c) the respondents were not entitled to further notice with respect to the Application.

The Applicant, Ms. Butler-Henderson, who was 23 years old at the time of the incident, was born with a physical disability that affects her nerve pathways. As a result, Ms. Butler-Henderson uses forearm crutches to assist her with mobility. Ms. Butler-Henderson argued that on Friday, August 19, 2016, she attended the Respondent’s restaurant (“Pentagram”) when she asked the female server/bartender if she could use the washroom which was located downstairs. The server refused, stating that she did not want to be held liable if the applicant fell down the stairs while making her way to the washroom. The applicant advised the server that she was not at risk but was nonetheless refused permission to use the washroom. Ms. Butler-Henderson reminded the server of anti-discrimination laws and was refused once again.

The server told Ms. Butler-Henderson to leave the premises and use a washroom at a Tim Horton’s located across the street. Ms. Butler-Henderson alleged that when she tried to go to the washroom, the server physically stood in front of the door leading downstairs to act as a barrier and in a loud voice, once again refused the applicant to use the washroom. When Ms. Butler-Henderson told the server to call the police and informed her that she had no right to refuse her the right to use the washroom, the server publicly and loudly announced to everyone in the restaurant that they would be witness to the fact that Ms. Butler-Henderson was advised not to use the washroom and that Ms. Butler-Henderson had indicated that the server would not be held liable if an accident had occurred. The server then moved out of the way and Ms. Butler-Henderson proceeded to successfully and safely use the stairs since the area was well lit and the stairs had railings on both sides.

Ms. Butler-Henderson submitted that as a person with a physical disability, she has to carefully plan where to “shop, work, and socialize around access to restrooms,” and that the respondent’s denial caused her “extreme physical and mental discomfort.” The server was aware of her disability and chose to publicly humiliate and belittle her. Ms. Butler-Henderson also made submissions regarding the Accessibility for Ontarians with Disabilities Act, 2005 SO 2005, c 11 (“AODA”), the United Nations Convention on the Rights of Persons with Disabilities, the Toronto Municipal Code, and the Occupiers Liability Act, RSO 1990, c O.2, however, since the Tribunal’s jurisdiction only applies to the Code, these submissions were not addressed.

The Tribunal found that Ms. Butler-Henderson is a person with a disability within the meaning of the Code, that her disability would have been clearly apparent to the server at the restaurant, and that Ms. Butler-Henderson experienced adverse treatment when she was repeatedly refused use of the washroom facilities. With no contrary evidence before them, the Tribunal also concluded that Ms. Butler-Henderson’s disability was a factor in the respondent’s adverse treatment of her. The respondent’s actions were humiliating, paternalistic, and the Tribunal found that the respondent did not “extend the Applicant the benefit of the doubt and simple decency as a person with a disability.” In conclusion, the Tribunal found that Ms. Butler-Henderson was able to establish a prima facie case of discrimination and found the Respondent’s behaviour to be clearly discriminatory. There were no efforts by the Respondent to assist in accommodating the Applicant and instead of asking the Applicant if she needed any assistance in using the facilities, the Respondent made a spectacle of the Applicant in front of its other patrons which was discriminatory.

In conclusion, the Tribunal ordered the Respondent to pay the Applicant the sum of $10, 000 as monetary compensation for infringement on her rights resulting in injury to dignity, feelings and self-respect (as well as pre- and post-judgement interest). The Respondents were also ordered to have their management staff and customer-facing staff complete the Human Rights Code 101 Training within 3 months of the judgement, and to display Ontario Human Rights Code cards in prominent places in the restaurant.

BRITISH COLUMBIA

Brar v. Vancouver Police Board (No. 2), 2020 BCHRT 159
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Date issued: August 12, 2020

A complaint was filed against the Vancouver Police Board (“VPB”) by Sandeep Singh Brar who was employed as a Special Constable in the Traffic Authority Unit. Mr. Brar alleged that the VPB discriminated against him on the basis of race and colour and on the basis of physical disability in the area of employment in contravention of s. 13 of the British Columbia Human Rights Code, RSBC 1996, c 210 (“Code”). Specifically, Mr. Brar alleged that VPB was unduly critical of his performance, did not provide him with the space to share his perspective during performance-related interviews and VPB ultimately stopped assigning him certain shifts. He alleged that his physical disability was exacerbated by VPB’s failure to reasonably accommodate his disability as he was not provided with sufficient breaks during shifts. He alleged that his termination was connected to his disability.

Mr. Brar was in a motor vehicle accident (“MVA”) which resulted in soft tissue injuries that affected his neck and back. As a result, Mr. Brar reduced some of his shifts and saw his doctor and physiotherapist to deal with his pain and discomfort. When Mr. Brar returned to work, there was an issue where Mr. Brar’s shift supervisor learned that instead of manning his position, Mr. Brar was seen inside his vehicle with a pillow. Mr. Brar stated that he brought the pillow for support of his lower back. Additionally, his shift supervisor received complaints that instead of managing his intersection, Mr. Brar was on his personal phone. There were other reports of Mr. Brar being on his personal phone while in the intersection and returning from his breaks late. Additionally, Mr. Brar received a complaint from a retired VPB officer who found his interactions with Mr. Brar unprofessional and confrontational.

It was not until a meeting with senior managers that Mr. Brar brought up his reasoning regarding his use of the pillow. VPB explained that there was no issue so long as he brought in a doctor’s note explaining that he needed to use the pillow for his back. However, Mr. Brar never indicated that he required more or longer breaks because of his MVA. He was not clear about what his disability consisted of other than referencing back pain. His doctor provided no medical restrictions on his work activities but rather recommended that Mr. Brar continue with work and physical activity. Consequently, Mr. Brar continued to make himself available for shifts, including long shifts.

The Tribunal found that VPB did not know and could not have reasonably known that Mr. Brar required more breaks or longer breaks to accommodate his physical disability since Mr. Brar did not tell VPB about needing this accommodation for his injury. Instead, Mr. Brar acknowledged that he told VPB that “it would be nice to have more breaks and seemed to suggest that they should have known that it was somehow linked to his pain.” Mr. Brar had the opportunity to convey his need for accommodations during meetings or in the lengthy written communications he submitted. Since Mr. Brar’s doctor did not place any medical restrictions on Mr. Brar’s ability to work and instead, recommended that he continue to work and engage in physical activity, it did not appear that Mr. Brar discussed any need for breaks with his doctor.

The Tribunal found on a balance of probabilities that Mr. Brar failed to establish that he experienced a disability-related adverse impact in his employment and that VPB knew or ought to have reasonably known that Mr. Brar required accommodation. Therefore, the complaint was dismissed.

ALBERTA

Hicks v Loblaws Inc. o/a Real Canadian Superstore, 2020 AHRC 62
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Date Issued: August 25, 2020

The Complainant, Paula Hicks, alleged that the respondent, Loblaws Inc (“Respondent”) discriminated against her in the area of employment practices on the grounds of mental and physical disability and family status contrary to section 7(1) of the Alberta Human Rights Act.

Ms. Hicks described a number of aggressive management behaviours that had occurred while she was an employee at the Respondent, some of which may have contributed to her need for medical leave. Ms. Hicks described a toxic work environment where she was not accommodated but rather, discriminated against, and forced to work even while under doctor’s orders to recover. Ms. Hicks also stated that she was given increased responsibilities but fewer hours to work, that she was treated negatively each time she called in sick, was never accommodated for her various therapies, injuries, disabilities, or her children’s disabilities. She also alleged that a supervisor gave staff direction behind her back.

The Respondent provided a letter supporting that there was no connection between Ms. Hicks’ disability or family status and the decision to terminate the Complainant. Further, the Respondent noted that it had made all reasonable inquiries and efforts to accommodate Ms. Hicks when she provided medical documentation and argued that Ms. Hicks had not disclosed her disability nor requested any other accommodation.

The Tribunal held that the behaviours as described by Ms. Hicks were not connected to any protected ground under human rights legislation but rather, constituted general bullying and inappropriate leadership that may be unacceptable and actionable under legislation other than the Act. Additionally, the Tribunal concluded that it was possible that a toxic work environment existed at the Respondent’s store, and discipline and performance discussions could have occurred in a more constructive manner. There was no evidence, however, suggesting a link between how the Complainant was treated at work and her physical or mental disabilities or her family status. The Director’s decision to dismiss the Complaint was upheld.

NWT

Portman v Elections NWT, 2020 CanLII 55913 (NT HRAP)
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Date Issued: August 11, 2020

The Complainant, Elizabeth Portman, alleged she was denied an accessible polling location and was discriminated against by the Respondent based on her physical disability when she voted in Yellowknife in the 2015 Territorial General Election (2015 Election). The Respondent’s position was that Ms. Portman had not proven discrimination in this case; and, if she had proven a case for discrimination, the Respondent submitted that they met their duty to accommodate the Complainant up to the point of undue hardship by providing other options to vote prior to the 2015 Election.

Ms. Portman lives with multiple sclerosis and has difficulty accessing physical spaces that an able-bodied person can navigate without difficulty. The Tribunal accepted Ms. Portman’s testimony she was not able to open the heavy main doors of the building due to her disability and could not access the polling station without following another elector into the building. It was also accepted that the gym doors were not open and that Ms. Portman could not access the voting booth without finding an alternative entrance and then waiting to be assisted. Further, there was no signage either on the exterior or interior of the building indicating that the polling location was accessible for persons with disabilities or that they had accommodations available for persons with disabilities.

The Tribunal found that the e-mail correspondence between Ms. Portman and the Respondent revealed a reluctance by the Respondent to genuinely engage with Ms. Portman about the issues of accessibility affecting her. The Tribunal held that the evidence established a prima facie case that the Complainant was discriminated against on the basis of disability. The Respondent did not accommodate the Complainant to the point of undue hardship. The Respondent was ordered to refrain in the future from using polling stations for Territorial election that are not accessible for persons with physical disabilities or that cannot be adapted to become accessible with reasonable accommodations. The Tribunal held that the Complainant had suffered injury to her dignity, feelings and self-respect and she should receive damages to compensate her. Damages in the amount of $5,000.00 under section 62(3)(v) of the Human Rights Act were awarded.

MARITIME PROVINCES

There are no relevant decisions for this month.

QUEBEC

There are no relevant decisions for this month.

CANADIAN HUMAN RIGHTS TRIBUNAL

There are no relevant decisions for this month.