There have been some decisions recently from the human rights tribunals relating to disability. The following are a selection of decisions from the Human Rights Tribunals in BC and Ontario and that were rendered during the month of July, 2018. 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
Ebony Evans (2L), Valeria Kuri (2L), Maggie Shi (3L)- Windsor Law
August 22, 2018
J and L obo T v School District No. 63 and others (2018 BCHRT 162)
Date Issued: July 13, 2018
This decision involves a complaint made on behalf of a minor against several parties, including his school and school district (“the Respondents”), for alleged discrimination on the basis of physical and mental disabilities. The minor suffers from Electro Hypersensitivity, a condition that invokes certain severe physiological symptoms when exposed to radiation from commercial Wi-Fi transmitters and wireless devises for prolonged periods of time. The complaint sought, among other accommodations, to have 25% of the school free of Wi-Fi and to turn off some assistive technology installed for hearing impaired children and teachers. The adjudicator dismissed the complaint on the ground that there was no reasonable prospect of success at hearing. Specifically, the Tribunal found that there was no objective support for any causal connection between the symptoms and exposure to Wi-Fi radiation. The adjudicator noted in the decision that, currently, the consensus among agencies charged with monitoring this issue is that there is no reliable evidence establishing such connection. Materials and medical expert opinions tendered by the complainant to the contrary were found not sufficient to establish a connection.
Hasenwinkle v BC Housing (2018 BCHRT 163)
Date Issued: July 13, 2018
Mr. Hasenwinkle has tinnitus and was a tenant of BC Housing from 2011 to 2015. He made a human rights claim against BC Housing for not effectively accommodating his disability and ultimately terminating his tenancy. During his tenancy, Mr. Hasenwinkle made several noise and odour complaints about his neighbours to the landlord. Similarly, BC Housing had received complaints from other tenants about some of Mr. Hasenwinkle’s behaviour. Later the parties reached a mutual settlement agreement specifying the date on which he must move out. This agreement was not in writing and did not mention a release of human rights claims. Here, BC Housing applied to dismiss Mr. Hasenwinkle’s complaint on the basis that his claim had no reasonable prospect of success. Central to its argument was BC Housing’s purported investigations in response to Mr. Hasenwinkle’s complaint for odour and noise which it concluded was unfounded. It said that Mr.Hasenwinkle was evicted for just cause unrelated to his disability. The Tribunal ultimately decided not to grant the application to dismiss this complaint because there was not enough information submitted by BC Housing to meet its onus to show that the claim had no reasonable prospect of success. More is required than a manager’s affidavit stating that there had been an investigation in response to Mr. Hasenwinkle’s complaint and that it had no merits.
Schwartzman v Mount Seymour Lions Housing Society and another (2018 BCHRT 166)
Date Issued: July 17, 2018
The complainant, Mr. Schwartzman, is a tenant living in a complex that provides housing to people with mobility impairments owned, leased, and managed by the respondents. He does not use a cane, wheelchair or other support to walk. He made a complaint against the respondents for their failure to accommodate and continued failure to accommodate tenants and visitors with disabilities. His allegations were the failure to accommodate the storage of his adult tricycle, the failure to adequately and quickly clear ice and snow and to prepare for future incidences, the failure to accommodate garbage bin access, and the violation of his privacy by sharing his medical information and accommodation request in an email. It must be noted that Mr. Schwartzman’s allegation mainly targeted the Landlord’s failure to accommodate tenants with disabilities other than himself. Mr. Schwartzman claims that he is acting in the public interest but has filed this as an individual complaint. He has not filed on behalf of anyone else nor does he have co-complainants with similar allegations. He could not establish a personal adverse impact. This complaint was ultimately dismissed because the Tribunal found that there was no reasonable prospect for Mr. Schwartzman to prove discrimination.
Champion v Sandalwood Retirement Resort and others (2018 BCHRT 167)
Date Issued: July 17, 2018
Ms. Champion filed a complaint against her former employer for her termination which she claimed to be related to her disability. The issue before the Tribunal was whether the complainant had a disability at the material time, whether the behaviours for which she was fired were related to her disability, and whether the respondents knew or ought to have known about the connection between her disability and alleged performance issues. This decision deals with the respondent’s application to dismiss the complaint. The complainant was on medical leave from work and was admitted to the hospital because of certain medical concerns. Some period after returning to work, she showed deterioration in work performance and attitude and was terminated thereafter. Even though she had a positive recovery and prognosis, the medical evidence before the Tribunal substantiated the fact that Ms. Champion experienced a serious illness with the potential for long-term repercussions on her well-being which may link to her declined performance. The Tribunal also found that the respondent ought to have known of a possible link under these circumstances and inquired after such link prior to taking any actions that would adversely affect the employee pursuant to Gardiner v Ministry of Attorney General, 2003 BCHRT 41. The application to dismiss was denied.
Edwards v Cowichan Valley Regional District (2018 BCHRT 172)
Date Issued: July 19, 2018
The complainant had been an employee for the respondent since 1997. She sustained permanent physical injury which resulted in physical limitations that restricted the work she could perform. She sought permanent accommodations from the respondent in the form of alternative positions which she alleged were refused by the respondent. She filed a complaint for discrimination against her employer on the basis of disability. The parties entered into a settlement agreement facilitated by the Tribunal which, among other terms, set out the conditions under which the complainant agreed to withdraw her complaint. Later, she was not satisfied with her awarded alternative position and chose to proceed with the complaint. Pursuant to their settlement agreement, Ms. Edwards could not pursue her complaint before the Tribunal. The Tribunal held that there are strong policy reasons that favour honouring settlement agreements. The language of finality used in the agreement evidenced the parties’ intention to fully resolve the matter with their agreement. Furthermore, because Ms. Edwards was represented by legal counsel and the negotiation of the agreement occurred with the assistance of a Tribunal mediator, reasons such as unconscionability and undue influence, that may normally allow the Tribunal to hear a dispute in the face of a binding agreement were not present.
Biggings obo Walsh v Pink and others (2018 BCHRT 174)
Date Issued: July 25, 2018
The complainant, Martina Walsh, was diagnosed with Amyotrophic Lateral Sclerosis (ALS) that resulted in the gradual loss of the use of her limbs and her use of a wheelchair. The apartment building in issue is an old building and has stairs-only access. Ms. Walsh’s husband, Mr. Biggings, asked the landlords to consider building a ramp to make it accessible to Ms. Walsh. After investigative efforts, the landlords definitively believed that a ramp is not a feasible or reasonable option. Ms. Walsh, with her husband as her representative, filed this complaint against her landlords (“respondents”) for discrimination in tenancy. At the centre of the issue is whether the respondents have satisfied their obligation to accommodate by taking all reasonable and practical steps to remove a physical barrier that prevents Ms. Walsh from accessing her unit safely. The Tribunal reaffirmed a settled position that moving-out is not an accommodation even when it may be a solution. Although the Tribunal agreed that there are legitimate challenges to building a ramp that could comply with Bylaws, it found the respondent had not exhausted all reasonable steps in its inquiry. The relevant legal analysis provides that the hardship endured by landlords has to become ‘undue’ to justify retaining disability-related barrier. The complaint was justified and an order for compensation and the building of a ramp was made.
Singh v. The Chartered Professional Accountants of Ontario (2018 HRTO 858)
Date Issued: July 3, 2018
The applicant filed his complaint 5 years after the last alleged incident of discrimination. The reason for delay was supported by medical evidence indicating that the applicant had suffered from significantly worsened symptoms relating to his disability in the years between the last alleged incident of discrimination in 2012 and his application in 2017. The Tribunal did not accept that the delay was made in good faith, as the medical evidence did not indicate a debilitating disability that would prevent the applicant from filing within the 2-year limitation period. At such, the application was considered untimely, and therefore dismissed by the Tribunal.
Church v. Ontario (Community and Social Services) (2018 HRTO 868)
Date: July 4, 2018
The applicant filed a human rights complaint against her ODSP caseworker. She alleged that the individual respondent had made discriminatory comments and invoked discriminatory stereotypes during several conversations while inquiring into her eligibility for benefits under the Ontario Disability Support Program Act. The applicant’s benefits were suspended. She appealed to the Social Benefits Tribunal (“SBT”). In this case, the respondents sought deferral of the application pending SBT’s decision. The Tribunal refused the request to defer and clarified that such legal action is restricted to matters that strictly relate to applicants’ eligibility for benefits. However, in this application, the issue concerned alleged discriminatory comments not eligibility and therefore, was outside of the SBT’s jurisdiction. The Tribunal also refused the respondents’ request to remove the named ODSP caseworker as a personal respondent to the application. Despite an available organizational respondent who is able to respond and remedy, the Tribunal noted that in Persaud v Toronto District School Board, 2008 HRTO 31, it was held that where an applicant’s allegation centres the conduct of an individual as it was in this complaint, there exists a compelling reason to name that individual as a party to an application.
M.B. v. Minto Properties Inc., (2018 HRTO 897)
Date Issued: July 11, 2018
Three applicants each filed applications to the Tribunal. Two applications alleged discrimination based on disability and the other alleged discrimination on grounds of association with a person identified by a protected ground under the Ontario Human Rights Code. All three applications dealt with the absence of a lift in the lobby of the apartment where the applicants live. Both requests to amend the applications were granted. In the amendment, the applicants added to their allegations, the respondents’ failure to keep the building emergency route and accessible parking area clear of snow and ice, the respondents’ property manager’s conduct of parking in the emergency route and accessible parking spots on seven occasions and the respondent’s failure to prevent non-disable persons from parking in accessible spots. This matter is awaiting final hearing and decision from the Tribunal.
Shaw v. Muslim Welfare Centre of Toronto(2018 HRTO 908)
Date Issued: July 12, 2018
The applicant filed an application following a ten-day stay at an emergency shelter operated by the respondent. The applicant submitted that she was treated rudely by staff while she was having a panic attack and alleged this to be an act of discrimination on the basis of her disability. The applicant also claimed that she was asked whether she had applied for social assistance on three occasions and by virtue of this was discriminated against based on her receipt of social assistance. The Tribunal found that the application no reasonable prospect of success under the Code. The applicant was not able to point to any link between her disability and the treatment she received even if it were assumed that she had been treated rudely by staff. The Tribunal also found that the respondents’ requests regarding the applicant’s social assistance status were not discriminatory. The Tribunal clarified that in order for these allegations to constitute a violation of the Code, the actions must deny an individual of housing opportunities due to their receipt of social assistance.
Matthews v. Apple Canada Inc., (2018 HRTO 916)
Date Issued: July 13, 2018
This application was a complaint for alleged discrimination with respect to goods, services and facilities because of disability. The applicant went to the respondent’s store due to an iPad malfunction and advised the respondent’s sales persons of his disability and his reliance on his iPad to access books and the internet. The applicant requested that the respondent replace his iPad due to technological malfunctions, however, the respondent refused, stating that this was not an ordinary practice. The Tribunal could not identify any facts that would indicate the respondent’s failure to provide services to the applicant on the basis of his disability. The Tribunal stated that it was plain and obvious that the applicant had not established a prima facie case of discrimination and thus, the duty to accommodate did not apply.
Panic v. Canadian Union of Public Employees, Local 1065 (2018 HRTO 947)
Date Issued: July 18, 2018
The applicant was an employee of a hospital. Her disability was accommodated for a year until 2014 when the employer advised that she could no longer be accommodated within the Ontario Public Service Employees Union (OPSEU) bargaining unit. The employer was willing to provide her with an alternative employment position under the umbrella of CUPE Local 1065. The issue with this alternative was that the applicant’s seniority was not transferable. The Tribunal clarified that the issue in this case was whether CUPE had an obligation to allow the applicant to transfer her seniority. The Tribunal determined that CUPE only had an obligation to provide reasonable accommodation which did not include giving the applicant enhanced seniority. The Tribunal concluded that CUPE Local 1065 did not infringe on the applicant’s rights under the Codewhen it refused to allow her to transfer seniority she had accrued with OPSEU when placed in a job in the CUPE Local as an accommodation to her disability.
Supreme Court of Canada (SCC)
British Columbia v. Phillip Morris International, Inc. (2018 SCC 36)
Date Issued: July 13, 2018
Although the following decision does not directly relate to disability, it does have implications for protecting the privacy and confidentiality of individuals with disabilities with health-care records. The following summary has been taken and shortened from the SCC website:
In 2000, the province of BC passed the Tobacco Damages and Health Care Costs Recovery Act, which allowed the Province to sue tobacco manufacturers for the cost of health-care benefits paid for diseases caused by tobacco exposure. In 2001, BC sued Phillip Morris International and other tobacco manufacturers on an aggregate basis, that is, on behalf of a population. To prove causation and damage, the Province intended to rely on several databases that held health-care records and documents of individual insured persons and documents relating to their health care benefits. Phillip Morris applied for access to these databases, arguing the necessity of this information to its adequate defence of the Province’s claim. The issue was whether the Province could be compelled to provide the requested information. Despite the compellability provisions (s. 2(5)(b) of the Act, the SCC ruled that the Province cannot be compelled regardless of relevance or anonymization of the information. Justice Russell Brown ruled for BC stating that even in instances where identifying information was removed, the databases still contained confidential health-care information about individuals and therefore insulated pursuant the Act when the Province sues on an aggregate basis as it is in this case.