HUMAN RIGHTS TRIBUNAL DISABILITY CASE SUMMARIES IN JULY & AUGUST 2023
The following are a summary of recent decisions relating to disability and human rights from the human rights tribunals in Canada (Summer, 2023, Issue 3).
This issue of our digest covers a selection of decisions from the Human Rights Tribunals of British Columbia, Ontario, and Alberta during the months of July and August, 2023.
This information is not intended to provide legal advice.
Prepared by Research Assistants for the Law, Disability & Social Change Project: Kiel Baker (JD Candidate, 2024), Florence Kwok (JD Candidate, 2024) and Samalia Williams (Dual JD Candidate, 2025).
July 2023
Ontario Human Rights Tribunal
Applicant v Thames Valley District School Board, 2023 HRTO 1070 (CanLII)
Date Issued: July 20, 2023
This was an application brought by the applicant through their litigation guardian, alleging discrimination with respect to services because of “disability”, contrary to the Human Rights Code, R.S.O. 1990, C. H.. 19, as amended (“Code”). More specifically the applicant’s litigation guardian had alleged that the applicant was discriminated against in the way they received their educational services from the by the respondent. The issues between the applicant and respondent began in September 2014. The school board had just reorganized the geographical boundaries of the French immersion language program. The applicant was thus forced to move to a new school in order to continue their French immersion studies. The applicant struggled at their new school. The applicant had faced a number of challenges with their organizational skills. As a result, the applicant was forced to move to an English school in October 2014. Within the application the applicant had referred to a number of concerns surrounding the applicant’s new school. The applicant was mainly concerned with the school’s size (being much smaller) and other students interfering with the applicant’s ability to learn.
The applicant while in Grade 4 was accepted into the school’s Exceptional student gifted program. Concerns were raised surrounding the applicant’s long standing organizational struggles, as well as the applicant’s handwriting. Thus, an Individual Education Plan (“IEP”) was formulated. The respondent offered multiple ways to accommodate the giftedness of the applicant. One of the suggestions was a congregated classroom (a classroom exclusively for students with the gifted exceptionality). The applicant desired the congregated classroom method and requested the respondent apply on the applicant’s behalf. The applicant was rejected from this program and was instead admitted into the “Gifted Itinerant Cluster Program”. The applicant had decided by the end of school year in 2016 the applicant should transfer schools and return to their previous school. This request was denied. The applicant’s litigation guardian advised they would withhold the applicant from school until a new IEP was in place. The applicant was withheld from school and sought a private psychoeducational assessment which was completed on October 12, 2016. The assessment established the applicant had a learning disability and had several recommendations including the applicant being designated as exceptional and having a learning disability. On October 21, 2016, the applicant was provided with the school transfer to her old school, which was accepted.
Within the application, the applicant made a number of allegations surrounding the respondent’s conduct. The applicant argued that they were discriminated against when the respondent failed to notify the applicants parents of the applicants learning needs. The applicant also made allegations surrounding the assistance provided to the applicant to rectify their handwriting and organizational skills. It was also alleged by the applicant that the respondent holds biases to who should be placed into congregated classrooms. The applicant also argued that the applicant received more attention in the areas that were identified as gifted, than the areas of deficiency should have been the focus.
The Tribunal reasoned that being classified as gifted is not a ground for discrimination under the Code. Therefore, the applicants claim relating to the gifted programming and congregated classroom were irrelevant. Furthermore, the Tribunal said that the applicant had failed to prove their disability was a factor in the respondent modifying the applicant’s application. Finally, the applicant’s other allegations surrounding the treatment they received from the respondent did not meet the grounds for discrimination under the Code. In the tribunals eyes the assistance that included the use of a Chromebook when other students hand wrote assignments, were seen to be used for the assistance in the applicants handwriting challenges and not discriminatory. Taking all the above into consideration the tribunal ruled that the applicant’s application should be dismissed.
British Columbia Human Rights Tribunal
Applicant v Resthaven Residences Ltd. and others, 2023 BCHRT 81 (CanLII)
Date Issued: July 18, 2023
The Respondents (a property management company and the owners of the condominiums) had brought an application to dismiss the applicants claim under Section 27(1)(c), (d)(i) and (ii), (e), and (f) of the Human Rights Code. The applicant had submitted a complaint against the respondents alleging that the respondents had discriminated against her based on physical disability, contrary to s. 8 and s. 9 of the Human Rights Code. The applicant claimed that the respondents had sold her a condo unit without a handicapped parking space, which she requested. The applicant says that she specifically asked for a parking spot before she purchased the unit, but for reasons for which the parties dispute the applicant received a parking space that did not meet her physical capabilities. The applicant also claimed, that the respondent’s failure to provide her with the only available handicapped parking space did not meet their duty to accommodate.
The claimant argues that the respondent did not provide her with the handicapped space she initially contracted to purchase. She further alleged that the respondents assigned the handicapped space she was promised to another lot owner. She claimed that only after her purchase had closed, did she realize that the parking spot did not meet her physical capabilities. She had also claimed that the property owner respondent, failed to take her requests and concerns seriously.
In support of their application the respondents submitted that they had not discriminated against the applicant based on her disability as she was bound by the terms and conditions of the purchase contract. The submitted that the applicant had contracted to take the non-handicapped parking space. The respondent said that the applicant did not take the space and knew she was not getting the handicapped one because she wanted to be close to the elevator and was away from other parking spots. The respondents argued that that the applicant received not only advice from her realtor but obtained legal advice before completing her purchase of the unit and could have ensured the parking spot met her needs. They argued that both parties’ realtors had engaged on discussions surrounding the parking spot and the applicant was aware that a non-handicapped parking space was going to be assigned to her unit.
The tribunal decided that the respondent’s application should be denied. The tribunal reasoned that since respondents had not made any submissions as to why there was no reasonable prospect of success in the applicants’ arguments, that the applicant should be allowed to continue their claim. The tribunal said that the respondents instead of relying on human rights law to prove their claim were relying on contractual law principles. The tribunal reasoned that the property management company was still potentially responsible in the action because their only argument was that they had not legal right to assign parking spaces. In response to the owner respondent, the tribunal said that they could not prove that they were not a party to the proceeding based on the limited submissions before them. Therefore, the respondents had failed to prove that proceeding would not further the purposes of the Code. Finally, the tribunal found that the applicant did not make a complaint in bad faith or for improper purposes, nor would her complaint be more appropriately dealt with under another proceeding.
Alberta Human Rights Commission
Complainant v Right at Home Housing Society, 2023 AHRC 74 (CanLII)
Date Issued: July 11, 2023
The Complainant requested a review of a Director’s decision to dismiss her human rights complaint. The Complainant alleges that the Respondent has discriminated against them on the grounds of age, mental disability and source of income. The Complainant has alleged that the Respondent (who is an affordable housing agency) failed to provide her with housing after an incident with staff members. The Complainant argued that the Respondent’s employees had called her a “crazy old woman, old bag and stupid white woman”. The Complainant also states that she was discriminated against when she was taken off the housing waiting list which she had been on for over 5 years. The Respondent argued against these claims by stating that the Complainant was offered housing options 3 times, but had declined. They also argued that almost 30% of the people who are offered affordable housing are ones with a mental disability.
The Tribunal ultimately ruled in favour of the Respondent and dismissed the Complainant’s complaint. In coming to its decision, the Tribunal reasoned that there was no factual connection between the alleged discrimination and the conduct of the Respondent. The Complainant was relying on bare bones information to support her claim and there was no demonstrative evidence to support her claim. Instead the evidence supported the Respondent. The Respondent had provided evidence that they attempted to provide the Complainant with 3 housing options all of which the Complainant declined. There was also evidence presented that the employee who had the encounter with the Complainant, had no other claims of abuse against them. Instead, it was the Complainant that was shown to have a record of difficult interactions with other staff members. All the evidence cumulated together led the Tribunal to reason why the Respondent’s evidence should be believed over the Complainants.
August 2023
Ontario Human Rights Tribunal
Applicant v The National Dental Examining Board of Canada, 2023 HRTO 1157 (CanLII)
Date Issued: August 3, 2023
This is a case where the Applicant alleges discrimination against the Respondent contrary to Human Rights Code, R.S.O. 1990, c. H.19. The Applicant was a graduate of a non-accredited dental program and was looking to obtain his license in Canada. The Applicant alleges that the Respondent discriminated against them during their participation in the Respondent’s dental examination equivalency program. In order to obtain a license in Canada, the Applicant was required to write 3 exams; the Assessment of Fundamental Knowledge (the “AFK”), the Assessment of Clinical Judgment (the “ACJ”) and the Assessment of Clinical Skills (the “ACS”). When a candidate fails anyone of these exams three times they no longer qualify for a license within Canada. The Respondent released the Applicant’s third ACJ exam mark on November 30, 2018, where the Applicant received a failing grade. Since the Applicant had failed the Respondent’s ACJ exam 3 times, they were no longer eligible for accreditation. However, in March of 2019, the Applicant was diagnosed with Keratoconus which negatively affects an individual’s visual acuity and can impact test performance. The Applicant, after becoming aware of their impairment, sought a Compassionate Appeal to rewrite their test. The Respondent declined the Appeal and thus this Application was brought.
The Respondent moved to submit that the Application put forth by the Applicant was untimely and should therefore be dismissed. The Respondent argued the date of the ACJ examination (November 30, 2018) was the trigger that started the one year-time line prescribed in Section 34(1) of the Code. Therefore, the application was deemed in the Respondent’s eyes to have been commenced almost 16 months after the trigger date.
The Tribunal denied the Respondent’s application to dismiss the action. The Tribunal reasoned that the Respondent’s request was based on a fundamental misconception of the Applicant’s claim. The Tribunal said this is not a case where the Applicant alleges a failure of accommodations but rather the Applicant takes the position that the denial of the Compassionate Appeal was discriminatory. Since the Application was filed within the one-year date of the denial of the Applications Compassionate Appeal, the Application was not seen to be untimely.
Alberta Human Rights Commission
Applicant v Finning (Canada), a Division of Finning International Inc., 2023 AHRC 81 (CanLII)
Date Issued: August 4, 2023
The Applicant has requested a review of the Directors Decision to have their human rights complaints dismissed. The Applicant alleged that the Respondent has discriminated against them during the course of their employment. The Applicant had worked for the Respondent for approximately 11 years as a unionized heavy-duty mechanic. The Applicant suffered a shoulder injury that required surgery and thus prevented them from working. The Applicant alleges that the Respondent denied their access to short term disability benefits, the Respondent made a without prejudice settlement offer to resolve dispute about short term disability benefits, and the Respondent failed in their duty to accommodate. The Director in the previous decision, reviewed the complaint and dismissed it as the claim was found to be without merit. The Director found there was a lack of information that an accommodation request was made, and there was a lack of adverse impact as a result of the without prejudice offer.
Surrounding the issue of the short-term disability benefit denial, the Commission reasoned that there was no bad faith in the Respondents conduct. The Commission reasoned that although the Applicant was able to negotiate directly with the insurer to reinstate their benefits, this did not mean that the Respondent had acted in bad faith. The Applicants allegations were purely speculative and not supported by any evidence.
The Commission also reviewed the issue surrounding the offer to settle the short-term disability benefits. The Applicant’s core argument was that if they accepted the offer to settle, they would have been receiving differential treatment from other employees and thus he would have been discriminated against. The Commission did not accept these arguments. The Commission said that settlement discussions are encouraged and if there was a finding that a settlement offer to be discriminatory this would not be within the issues of the administration of justice.
Finally, the Commission reviewed the duty to accommodate issue. The Commission reviewed the evidence and determined that there was no factual basis for the Applicant’s claims. The evidence suggested that the evidence put forth by the Applicant was hearsay with little evidentiary persuasion. Furthermore, there was evidence put forth to indicate that the Applicant had failed to communicate to the Respondent that they were medically cleared to work and required an accommodation. Therefore, after taking an extensive examination of the facts before it, the Commission upheld the original decision of the Director to dismiss the complaint.
Law, Disability & Social Change 