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, 2021, Issue 2).

This issue of our digest covers decisions from the Human Rights Tribunals of British Columbia, 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 June 2021. 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: Roxana Jahani Aval (JD Candidate, 2022) and Lucia Chiara Limanni (JD Candidate, 2023)

BRITISH COLUMBIA

AB v Rankin and another, 2021 BCHRT 73
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Date Issued: June 1, 2021

The Complainant, AB, alleged that the Respondents, his landlords – Mark Rankin and Neil Mina, discriminated against him with respect to tenancy on the grounds of disability, contrary to s. 10 of the Human Rights Code, RSBC 1996, c 210, as amended (“Code”). AB claimed the Respondents failed to accommodate his medical disability when he requested a new washing machine that utilized hot water. AB applied for the anonymization of his identify in this proceeding out of concern for his professional reputation, and the request was granted.

AB has experienced bowel-related issues for years and has difficulty cleaning himself after bowel movements. As a result, his medical condition requires his laundry to be properly sanitized, specifically ensuring hot water is used. In November 2017, AB and his wife moved into the apartment owned by the Respondents. The tenancy agreement explained that the apartment’s rent covered laundry facilities and the unit came with a washing machine. In the beginning of his tenancy, AB noticed that it took a long time for hot water to heat in his unit and only cold water was released when using the hot water wash setting on his washing machine.

In January 2018, AB informed Mr. Rankin his washing machine’s hot water cycle was not working, and his laundry smelled bad. An inspection of the washing machine was done shortly thereafter, and the technician determined the washing machine was not designed to heat water. As a result of the inspection and his on-going medical-related needs, AB requested that Mr. Rankin provide him with a washing machine that was capable of using hot water. Mr. Rankin informed AB he would not replace the washing machine and would only do so if it were broken.

In April 2019, AB e-mailed Mr. Rankin in which he disclosed his medical condition and explained his need for the hot water washing machine. AB testified that he disclosed he had a medical condition but not what the medical condition was because he was concerned for his privacy and about receptiveness. In April 2018, AB e-mailed Mr. Rankin again to specifically request accommodation for his medical condition to which Mr. Rankin denied his request. In July 2019, AB e-mailed Mr. Rankin to inform him of his purchase of a new washer and dryer that used hot water and requested the removal of his old washing machine. The Respondent notified AB that he did not have permission to remove the machine. In July 2020, AB finally disposed of the washing machine and testified that he did not do so earlier because he was concerned about Mr. Rankin’s threats. AB testified that his new washing machine properly cleaned his laundry.

The Respondents denied the allegations of discrimination against AB and sought a dismissal of the complaint. The Respondents argued that under the Residential Tenancy Act, SBC 2002, C 78 (“RTA”), they were under no obligation to replace the washing machine. Further, the Respondents suggested that AB declined their offer to send another technician to complete an inspection of the washing machine and thus, failed to participate in the accommodation process. Finally, the Respondents claimed they acted without the intent to discriminate since they took steps to address AB’s concerns including contacting the property manager to determine the cause of the washing machine’s hot water incapability.

The Tribunal found that AB is a person with a disability within the meaning of the Code, that he experienced an adverse impact in his tenancy as he was unable to clean his laundry due to his washing machine’s incapability of using hot water, and that AB experienced adverse impact when he was unable to access a washing machine that could sanitize his laundry. As AB disclosed his medical condition to the Respondents, the Tribunal also concluded that AB’s adverse treatment was connected to his medical condition. The Tribunal held that the Respondents failed to take all reasonable steps to accommodate AB once he disclosed his medical condition and that their obligations fell under the Code rather than the RTA. It was determined that AB did not fail to participate in the accommodation process and the Respondent’s belief that they acted without intent to discriminate is not relevant nor does it mitigate their obligations under the Code.

In conclusion, the Tribunal found that the Respondents discriminated against AB contrary to s. 10 of the Code. The Tribunal ordered the Respondents to cease the contravention and refrain from committing similar or the same contravention pursuant to ss. 37(2)(a) and (b) of the Code. The Respondents were also ordered to pay the Complainant the sum of $12,000 as compensation for infringement on his rights resulting in injury to dignity, feelings and self-respect pursuant to s. 37(2)(d)(iii) (as well as pre- and post-judgement interest). Finally, AB would be paid $2,536.84 for expenses acquired as a result of the contravention pursuant to s. 37(2)(d)(iii) of the Code.

Foote v Essence Pilates and another, 2021 BCHRT 77
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Date Issued: June 15, 2021

The Complainant, Steven Foote, alleged that the Respondents, Brent Friesen and Essence Pilates, discriminated against him on the grounds of mental and physical disability contrary to s. 8 of the Human Rights Code, RSBC 1996, c 210, as amended (“Code”). The Complainant’s disability creates an inability to tolerate paint fumes, and as a result he was unable to attend classes in the pilates studio while it was being painted in September and October 2019. Mr. Foote claimed the owner of Essence Pilates, Brent Friesen, discriminated against him when he filled Foote’s spot in his weekly classes and told him that he was no longer welcomed at the studio.

The Respondents denied all discriminatory claims and applied to dismiss the complaint on the grounds that the events are not discriminatory under the Code, there is no reasonable prospect of success, and the Complainant would not benefit from the complaint pursuant to ss. 27(1)(b), (c) and d(i) of the Code. Further, the Respondents claimed Mr. Foote filed the complaint for improper motives or  in bad faith pursuant to s. 27(1)(e) of the Code.

The Complainant, Mr. Foote, lives with Multiple Chemical Sensitivity and has asked Mr. Friesen to provide a fragrance-free environment at the studio. Pilates Essence was not fragrance-free when Mr. Foote initially joined in 2006 but since then the Respondents have asked clients to refrain from wearing fragrances and have used low odour cleaning supplies to accommodate him.

In Fall 2019, Mr. Friesen and his wife began painting the studio and used a Volatile Organize Compounds paint which they felt did not leave an odour. They also left the doors open for ventilation. Mr. Friesen informed his clients that if they were to take time off, he would not be able to keep a spot open for them. From Fall until November 2019, Mr. Foote chose not to attend any classes at the studio and did not pay to hold his spot.

On October 31^st, 2019, Mr. Foote went to the studio and found that there was no odour and told Mr. Friesen he would attend a class again. The Respondents informed Mr. Foote his regular class spot was filled and offered to find him another class until spots became available in his regular class. Mr. Foote claimed this was discrimination and Mr. Friesen responded aggressively in the parking lot. Mr. Friesen denied aggressively retaliating. The parties’ evidence conflicts. The Respondents alleged Mr. Foote’s behaviour was “bullying” and informed Mr. Foote by e-mail he was no longer welcome at the studio due to his abrasive behaviour. The Respondents informed Mr. Foote it would be in his best interest to find another studio as he was unhappy at theirs.

The Tribunal concluded that Mr. Foote’s claim of living with a disability goes beyond conjecture and his allegations of discrimination, if proven, would contravene the Code. Thus, the Tribunal denied the Respondent’s application to dismiss the complaint pursuant to s. 27(1)(b). The Tribunal has discretion to dismiss a complaint after considering the allegations if it does not allege acts or omissions that would go against the protections found in the Code. Additionally, the Tribunal concluded that there is no reasonable prospect that Mr. Foote’s disability will be found to have influenced the Respondents’ decision to fill his spot in the unattended classes. Thus, Mr. Foote’s claim that these actions were discriminatory were dismissed pursuant to s. 27(1)(c) of the Code. However, his claim regarding the Respondents informing him that he is no longer welcome at the studio – in these preliminary motions, no definitive conclusion as to whether an action was discriminatory is made will proceed.

The Tribunal has denied the Respondents’ application to dismiss the complaint pursuant to s. 27(1)(d)(i). They determined  there is no evidence to support the argument that Mr. Foote made this complaint in bad faith or with improper motives .The application to dismiss, pursuant to s. 27(1)(e) of the Code was denied. The Tribunal encouraged both parties to attempt the Tribunal’s mediation services to resolve this complaint.

Hall v The Salvation Army and another, 2021 BCHRT 78
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Date Issued: June 16, 2021

The Complainant, Ms. Sandra Hall, was evicted from an emergency shelter known as The Compass House (“Compass”), that was operated by the co-Respondent, The Salvation Army. The Compass provides housing for individuals with physical or mental disabilities, as well as those who require shelter while searching for permanent housing, accommodations, and employment. Ms. Hall claimed that Compass evicted her from their residence due to concerns regarding her mental health, stating that she was “difficult to house.”

Ms. Hall’s complaint also includes the co-Respondent, the British Columbia Housing Management Commission (“BC Housing”), which provides long-term housing by application, depending on an individual’s need for housing. As a result, Ms. Hall has filed a discrimination complaint against both co-Respondents on the grounds of mental disability. Ms. Hall claims that Compass refused to provide emergency housing and shelter, and BC Housing refused to provide Ms. Hall long-term living accommodations despite receiving the highest level of need for housing contrary to ss. 8 and 10 of the Human Rights Code (“Code”). Section 8 of the Code states that a person must not be denied any accommodation, service or facility available to the public, and must not discriminate based on a person’s need for accommodations. Section 10 of the Code states that a person must not deny the right to occupy or rent a space nor discriminate against a person due to their disability other prohibited grounds. The co-Respondents denied any allegation of discrimination and moved for a dismissal.

Compass’ mandate stipulates that individuals are eligible to use Compass services on a first-come first-serve basis until they find permanent housing, for which they are free to leave at any time. Residents are obligated to follow Compass’ policies while they use the facility. The policy includes rules and expectations such as a curfew, an obligation to treat staff and residents with respect, as well as a “three-strike” policy. The Salvation Army outlined their policies, stating that residents are made fully aware of the policies at intake. One policy stated that “mental health issues were acknowledged and accepted”, so long as the individual is able to follow the policies in a group setting.

The Compass staff noted that Ms. Hall engaged in arguments with staff and other residents on multiple occasions, becoming aggressive and upset. Ms. Hall was evicted for a short period . The co-Respondents noted that despite their best efforts and multiple warnings to Ms. Hall, they were unable to rectify Ms. Hall’s behaviour. As a result, they were forced to evict her to protect the well-being of staff and other residents. 

In terms of the complaint against the co-Respondent, BC Housing, Ms. Hall claimed that they were unable to find her permanent housing despite waiting a year for a placement. Additionally, Ms. Hall scored “very high” on the Vulnerability Assessment Tool (“VAT”), a tool recommended by the Mental Health Commission of Canada to assess the mental vulnerability of homeless individuals. One purpose of the VAT is to determine the urgency required to obtain stable housing. BC Housing claimed that they are in charge of identifying applicants in need of housing and uploaded their assessments into a registry. BC Housing’s involvement concluded there. They also claimed that Ms. Hall was not placed in permanent housing as they were unable to find appropriate housing in her requested geographical area.

The British Columbia Human Rights Tribunal dismissed Ms. Hall’s claims, stating that Ms. Hall failed to respond to the application.

The Tribunal noted that Ms. Hall’s application was dismissed under s. 27 of the Code. Section 27 states that a member of the panel may dismiss all or part of a claim for a number of reasons. In this case, the claim was dismissed because Ms. Hall failed to appear for the hearing and failed to prove that she faced adverse impact in the area of accommodation, tenancy and services due to her mental disability, contrary to s. 27. The threshold for the application is low and required evidence to be submitted; to which Ms. Hall failed to submit. The Tribunal also noted that Ms. Hall’s complaint on s. 10 of the Code does not apply, since there are no landlord-tenancy relationship for housing in which the resident does not pay rent, possess a tenancy contract or any element of permanence in the housing placement. The Tribunal noted that Ms. Hall’s application may have been successful if she had submitted evidence regarding her mental disability, even if the Salvation Army could defend their claim.

The claim was dismissed.

ALBERTA

Anten v Signature Living (Rocky Ridge) Management Inc., 2021 AHRC 123
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Date Issued: June 3, 2021

**TRIGGER WARNING**

This summary contains discussion of sensitive subject matter relating to sexual abuse.

A complaint was filed against Signature Living (Rocky Ridge) by Colin Anten who was employed as a utility dishwasher in 2015. Mr. Anten alleged that Signature Living discriminated against him on the basis of mental and physical disability, gender and age in the area of employment in contravention of s. 7 of the Alberta Human Rights Act (“Act”). This section prohibits employers from refusing to employ, continue employing or discriminate against any person regarding employment on the basis of age, gender, or disability.

Mr. Anten alleged he was berated at work, sexually harassed by co-workers, shared concerns regarding co-worker theft and the quality of care for senior living at the Signature Living facility. Signature Living denies knowledge of Mr. Anten’s concerns involving sexual harassment and provided evidence of incident reports submitted by AB, none of which referenced the alleged remarks of sexual harassment. Mr. Anten alleged that employer mistreatment and lack of response by management caused him to get sick and take a stress leave in January 2016. Initially, Mr. Anten’s physician required four months for stress leave but extended the leave until September 2016. During this time, Mr. Anten was diagnosed with PTSD, Bipolar syndrome and diabetes. Though Mr. Anten disclosed to Signature Living that he was sick, he did not share details of his diagnosis’.

In September, the Complainant informed his employer of his return, as advised by his physician, which was to include modified duties for two days per week. In August 2016, Signature Living requested Mr. Anten provide written notice of his return to work and fulfillment of medical forms to support his request for modified work. The Complainant did not submit the requested medical information as he was unable to visit his physician and notified his employer he would not be returning to work until October 2016. The Complainant requested an extended deadline for submitting the medical forms and Signature Living agreed but informed Mr. Anten that failure to provide this information by November 2016 would result in termination of employment. In November, Mr. Anten provided Signature Living with a walk-in clinic note from a new doctor who stated he would be off work until he is cleared by an attending physician. Signature Living informed the Complainant that he failed to provide the requisite documentation and terminated his employment.

The Tribunal held that there was no reasonable basis in the evidence to proceed to a hearing under section 26 of the Act. Additionally, the Tribunal found there was no breach of the Act as Signature Living fulfilled its duty to accommodate Mr. Anten’s disability once they received knowledge of it. Signature Living fully accommodated his medical leave and allowed a number of extensions for this leave. The remarks concerning Mr. Anten’s age and gender were made prior to his filing of the complaint and could not be used to form a successful complaint due to the legislations limitation period for filing a complaint. Further, claims relating to sexual harassment were found not to be reliable. There was no evidence that suggested Mr. Anten’s gender or disability were connected to his termination. Rather, unauthorised absence was held to be the sole reason for termination. The Director’s decision to dismiss the Complaint was upheld.

Hough v Pillar Resource Services Inc., 2021 AHRC 121
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Date Issued: June 1, 2021

The Complainant in this matter, Mr. Greg Hough, claimed that the co-Respondent, Pillar Resources Services Inc. (“Pillar”), discriminated against him contrary to s. 7 of the Alberta Human Rights Act (the “Act”) on the grounds of physical disability. Section 7 stipulates that an employer shall not refuse to employ, or refuse to continue employing, a person due to their disability. Section 7 also states that an employer shall not discriminate against a person with a disability during the course of their employment. Mr. Hough was employed by Pillar as a pipefitter and suffered a work-related injury that required accommodated duties for the duration of his recovery. Pillar provided the accommodated duties and subsequently terminated Mr. Hough’s employment once he returned to his full duties.

Mr. Hough put forward three claims against Pillar:

1. That Pillar required that he perform duties outside of his medical accommodations, and in doing so, he was further injured (“Complaint 1”)
2. That Pillar harassed Mr. Hough during his period of accommodated duties (“Complaint 2”)
3. That Mr. Hough’s injury was a factor in his termination from Pillar (“Complaint 3”)

The Tribunal was tasked with addressing the following matters:

1. Whether the Respondent discriminated against the Complainant by requiring him to perform duties outside of his medical restrictions?
2. Whether the Respondent discriminated against the Complainant by harassing him during his modified duties?
3. Whether the Respondent discriminated against the Complainant in his termination?
4. What the appropriate remedy should be if discrimination were established?

The burden is on the Complainant to provide evidence that would establish their claim. This is done on a balance of probabilities. The Tribunal outlined that the Complainant must satisfy the legal test from the Supreme Court of Canada decisionMoore v British Columbia (Education) (“Moore”) to establish discrimination, which showed that the complainant had a protected ground,  suffered an adverse impact, and that the Complainant’s protected ground was a factor in the adverse impact (Moore, para 33). The Moore test also analyzes whether the discrimination was justified. Section. 11 of the Act finds no discrimination occurred if a breach was reasonable and justified in the circumstances.

The Tribunal analyzed Mr. Hough’s claim through the Moore test and found that there was no discrimination on Complaint 1, as the evidence did not support a finding of discrimination. The Tribunal believed that Mr. Hough’s modified duties accommodated his work injury, and he was not forced to engage in full duties. However, the Tribunal found that there was discrimination on Complaint 2 and 3.

The Tribunal found that Mr. Hough experienced harassment as a form of inappropriate discipline. Pillar imposed various discipline practices that were not appropriate, justified and/or were disproportionate. The Tribunal noted that the evidence provided by Mr. Hough’s showed that the disciplinary actions were not justified or proportionate to the action requiring disciplinary measures that they stemmed partly  from frustration surrounding Mr. Hough’s need for accommodated duties. Various disciplinary measures were used that amounted to harassment included docking Mr. Hough’s pay, suspension for valid absenteeism relating to his disability and legitimate medical reasons, as well as writing inaccurate information on his disciplinary record. The Tribunal found that the evidence upheld Mr. Hough’s claim of harassment on Complaint 2 and that there was discrimination on the protected ground of physical disability.

Lastly, the Tribunal addressed Complaint 3 — the claim that Mr. Hough was forced into demeaning work as a form of harassment by Pillar due to his physical disability. Pillar assigned Mr. Hough various monotonous and tedious tasks that accommodated Mr. Hough’s modified duties, but Mr Hough found them to be demeaning and that they were intended to harass him. The tasks accommodated his disability but “went out of [the] way to make the Complainant’s work life difficult or unpleasant.” The Respondent also created a safety video depicting the Complainant’s injuries and showed it to 40-50 employees during the time of the Complainant’s employment. Mr. Hough explained that the video was edited to depict him in a negative manner and to cause ridicule in the workplace. The Tribunal found that Mr. Hough was embarrassed by the video and making/showing the video was harassment. The Tribunal found discrimination on the protected ground of physical disability due to the harassment from the demeaning work and safety video.

The Tribunal found that Mr. Hough was terminated on his first day back at full duties, and that his physical disability requiring modified duties was a factor in his termination. Pillar noted that Mr. Hough’s termination was due to the lack of work, which was not communicated with him until after his termination. Evidence was presented to the Tribunal that showed Pillar’s human resources department was asked whether they can terminate an employee once they return to full duties, , demonstrating that Pillar was careful not to terminate Mr. Hough while on modified duties. These findings satisfied the Moore test.

The Tribunal found that Mr. Hough was entitled to a remedy pursuant to s. 32(b) of the Act in order to restore Mr. Hough to his original position prior to the discrimination. Section 32 of the Act states that the Tribunal may order compensation as a remedy for a party who acquired a loss due to the discrimination that they experienced.  Mr. Hough was awarded $25,000 in damages to dignity and lost wages for approximately 4-5 weeks.

TERRITORIES

Duley v De Beers Canada Inc., 2021 NT HRAP 52008
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Date Issued: June 14, 2021

This decision is an appeal from the Director of Human Rights (the Director), after the Director dismissed the original complaint under s. 44(1)(c) of the Human Rights Act, (the “Act”) calling it “trivial or frivolous.” Section 44(1)(c) permits the Commission to dismiss all or part of a claim if the complaint is without merit. A complaint can be appealed to the Commission to reassess.

The Appellant, Mr. Alan Duley, was an employee of the Respondent, De Beers Canada Inc. Mr. Duley is an experienced miner who worked in the Respondent’s mine, located in a rural area of the Northwest Territories. He worked for a total of two shifts for two-week durations spanning from May 11, 2007 to June 21, 2007. At the end of Mr. Duley’s final shift, he was terminated by the Respondent. The Respondent claimed that Mr. Duley did not promptly return to his usual work duties after being asked to complete an emergency fix of a broken component, a task that he was trained to complete. The Respondent also noted that Mr. Duley failed to comply with the Respondent’s safety protocol. The Appellant conceded that these events took place, but not exactly as they were described by the Respondent. He explained his version of the events to the Mining Inspector’s Office, and they upheld the decision to terminate Mr. Duley.

Mr. Duley filed his complaint on the ground of discrimination based on disability, race, colour and ancestry, pursuant to s. 5(1) of the Act. This summary will concentrate primarily on the claim grounded on discrimination due to the disability. Mr. Duley claimed he suffered injuries at his previous mine and was limited in some tasks expected of a miner. He did not disclose his disability to the Respondent. A third-party involved at the mine knew of Mr. Duley’s injury, and Mr. Duley assumed the third-party informed the Respondents of the injury.

During the original Tribunal hearing, the Director noted that discrimination on the ground of disability would occur if the Respondent knew about the injury and did not hire Mr. Duley, or fired him as a result of his injury. Without these grounds, the Appellant’s claim would be dismissed. The Director noted that there was no evidence that the Respondent was aware of Mr. Duley’s injury, neither from Mr. Duley himself nor the third-party involved. Additionally, there was no evidence to show that the Respondent would have terminated Mr. Duley if they had known about injury. The Director found there was no reasonable evidence to support the discrimination claim on the ground of disability.

The reviewing body at appeal found no palpable and overriding error in the Directors reasons. The reviewing body found that there was no evidence that supported Mr. Duley’s claim of discrimination and upheld the Director’s findings. Mr. Duley asked the Director to determine whether the termination was because of the discrimination on at least one of the prohibited grounds, and the Director found no evidence that would sustain such a finding.

The reviewing body upheld the Director’s dismissal and further dismissed the appeal.

ONTARIO

There are no relevant decisions for this month.

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.