De Souza v. Ontario (Liquor Control Board)

1993-11-16

Ontario Board of Inquiry

Vince De Souza Complainant

and

Ontario Human Rights Commission Commission

v.

Ontario Liquor Control Board Respondent

Date of Decision: November 16, 1993

Before: Ontario Board of Inquiry, Ronald W. McInnes

Comm. Decision No.: 568

Appearances by: Anthony D. Griffin, Counsel for the Commission Vince De Souza, on his own behalf Joan Haberman, Counsel for the Respondent

DISABILITY — liquor service denied on the basis of the effects of a head injury — DISCRIMINATION — direct discrimination — adverse effect discrimination — REMEDIES — apology

Summary: The Board of Inquiry finds that the provisions of the Liquor Control Act which prohibit the sale of liquor to any person who appears to be intoxicated had a discriminatory effect on Vince De Souza because of his handicap. Employees of the Ontario Liquor Control Board refused to sell Mr. De Souza liquor at the Meadowvale Town Centre store in Mississauga in Ontario in 1991.

Mr. De Souza has a disability which was caused by an injury in 1981. As a result of the injury he has a limp and slurred speech. Employees of the Ontario Liquor Control Board refused to sell liquor to Mr. De Souza because they decided from his appearance that he was intoxicated.

The Board of Inquiry finds that the refusal of service did not constitute direct discrimination because Mr. De Souza did not clearly inform the Ontario Liquor Control Board personnel of his disability and explain that it caused him to appear intoxicated. However, the Board of Inquiry finds that the provisions of the Liquor Control Act have a discriminatory impact on persons with disabilities because they require refusing the sale of liquor to persons who appear intoxicated, and persons with some kinds of disabilities can be mistaken for intoxicated persons. Since the Ontario Liquor Control Board at the time provided little to its employees by way of training and awareness programs on disability for its staff, the Board of Inquiry concludes that it cannot show that it took steps to accommodate Mr. De Souza short of undue hardship.

The Board of Inquiry declines to make an award in this case, but recommends strongly that the Liquor Control Board consult with the Human Rights Commission and undertake a more comprehensive consultation process with organizations of persons with disabilities with a view to developing an appropriate training plan for its employees.

Cases Cited

Hajla v. Nestoras (1987), 1987 CanLII 8545 (ON HRT), 8 C.H.R.R. D/3879 (Ont. Bd.Inq.): 50

Kellerman v. Al's Restaurant and Tavern Ltd. (1986), 1986 CanLII 6524 (ON HRT), 8 C.H.R.R. D/3924 (Ont. Bd.Inq.): 38, 41

Munsch v. York Condominium Corp. No. 60 (1992), 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339 (Ont. Bd.Inq.): 50

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 37

Legislation Cited

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 1: 2, 4

s. 9: 4

s. 10: 1

s. 10(1)(b): 36

s. 11(1): 43

s. 11(1)(a): 46

s. 11(2): 45

s. 47(2): 34

Liquor Licence Act, R.S.O. 1990, c. L.19

s. 29: 32

s. 39: 32

s. 61: 32

Authorities Cited

Vizkelety, Béatrice, Proving Discrimination in Canada (Toronto: Carswell, 1987): 37

THE COMPLAINT

1Vince De Souza sustained severe head injuries in an assault which occurred in British Columbia in June 1980. While he has improved considerably since that time, he still has incomplete control of his left arm and leg, weakness and diminished feeling in his left facial area and dysarthria. This manifests itself in a limp, swaying gait and slurring of his speech. It is not disputed that Mr. De Souza has a handicap within the meaning of what is now s. 10 of the Human Rights Code [R.S.O. 1990, c. H.19] (the "Code").

2The Liquor Control Board of Ontario ("LCBO") sells wine and spirits from stores throughout Ontario. It is not disputed that this constitutes a service within the meaning of s. 1 of the Code.

3On July 2, 1991, Mr. De Souza was refused service by both the manager and a cashier at an LCBO store in the Meadowvale Town Centre in Mississauga. It is not disputed that the reason for refusal was that the LCBO employees perceived Mr. De Souza to be intoxicated.

4By a letter dated December 29, 1992, I was appointed by the Minister of Citizenship to form a board of inquiry to hear and decide the complaint of Vince De Souza dated December 11, 1991, alleging discrimination in services on the basis of handicap by the Ontario Liquor Control Board, Rick Redwood and Harry Whitehead contrary to ss. 1 and 8 (now s. 9) of the Human Rights Code.

5At the commencement of the hearing, I granted an application by counsel for the Ontario Human Rights Commission (the "Commission") to amend the complaint by deleting Rick Redwood and Harry Whitehead as respondents. This was done with the concurrence of the complainant and counsel for the respondents.

THE HEARING

6The hearing in this matter was commenced by conference call on January 20, 1993. The hearing reconvened for evidence and argument on June 3 and 4, 1993.

7At the conclusion of argument on June 4, 1992, counsel for the respondent requested that the hearing be adjourned pending provision of some additional medical information from the complainant and consideration of whether further evidence and/or submissions would be required in this regard. By letter dated August 24, 1993, counsel advised me that she had no submissions to make with respect to this issue.

THE INCIDENT

8The essentials of what occurred on July 2, 1991, are not in dispute although there is conflicting evidence on many of the details.

Mr. De Souza testified that he went into the liquor store at about 5:00 p.m. to purchase some rum since he and his wife were having visitors that evening. He said he was in a hurry. Just after he selected a bottle of rum, the manager, Mr. Whitehead, told him, in what he described as a loud imperious tone, to put the bottle back because he had had enough.

9Mr. De Souza stated that he said the following to Mr. Whitehead:

Look, don't make a mistake. Don't make an error of judgment. I am not drunk. I have been in an accident.

Look, if you like, call the police and I will wait right here. I will deal with the police, call the police.

Look, I sued the B.C. liquor board for the same reason. Don't make an error of judgment.

According to Mr. De Souza, Mr. Whitehead then walked away. Mr. De Souza took the bottle of rum and walked to the cashier. On approaching the counter, he saw a Jack Daniels bourbon gift set which was on sale and put it on the counter. The cashier, later identified as Virginia Pridham, refused to serve him and said something to the effect that she could not sell to him because he was too drunk. He admitted that he could not recall the exact words because of the lapse of time since the incident.

10Mr. De Souza then went to the window of the store and signalled to his wife, who was waiting in the car in the parking lot, to come into the store. He stated that he met her at the door and asked her to go in and pick up the liquor as he had been refused service. He stated that he then walked out of the liquor store and back to his car.

11On cross-examination, Mr. De Souza conceded that he had not indicated in any of his prior statements that he had specifically told Mr. Whitehead that he had been in an "accident" (his manner of referring to the assault which resulted in his head injury). No reference to this statement appears in the complaint itself. By letter dated July 3, 1991, Mr. De Souza wrote to Mr. Glen Morrison, Regional Manager, Ontario Human Rights Commission, detailing his complaint about the incident on the previous day. He does not refer to having told either Mr. Whitehead or Ms. Pridham that he had been in an accident but states only, in a postscript, that his wife explained about the accident and his resulting disabilities. On February 6, 1992, Mr. De Souza wrote to Angela Forghani, a Commission officer, apparently in response to the reply filed by the LCBO to his complaint. This is a very detailed letter extending to four pages. Again, the only reference to his disability is a statement that his wife told the store manager that he had been in an accident.

12On cross-examination, Mr. De Souza stated that there had been prior situations where it had been necessary for his wife to assist him by explaining his condition. The evidence was not clear as to whether this involved liquor stores or not.

13Mr. Whitehead testified that he was in his office and was alerted to a potential problem by Ms. Pridham by means of a buzzer under her desk which was connected to his office. He went out to speak to Ms. Pridham and she asked him to keep an eye on a customer who had come into the store and pointed to Mr. De Souza.

14Mr. Whitehead testified that he watched Mr. De Souza for a minute or two from about twenty feet down the aisle. He noticed that his walk was unbalanced and that he was swaying. He formed the impression that Mr. De Souza was not fit to purchase alcohol. He then approached him and initiated discussion by saying "I am sorry, we will be unable to serve you at this time." He testified that Mr. De Souza told him that he was making a very grave mistake and that he had sued the B.C. liquor board for $2,000. He also made mention of calling the police. Mr. Whitehead testified that Mr. De Souza did not explain why he thought Mr. Whitehead was making an error or why he had sued the B.C. liquor board. He specifically denied that Mr. De Souza mentioned that he had been in an accident.

15Mr. Whitehead testified that Mr. De Souza's speech was slurred and he had some difficulty in understanding him. He stated that he leaned closer and did not smell alcohol on Mr. De Souza's breath. He did not regard this as significant since vodka does not smell and that often people who have been drinking will use mouthwash or breath mints before they come into the store. Mr. De Souza was wearing sunglasses throughout the discussion and this prevented Mr. Whitehead from being able to look into his eyes to help assess whether or not he was intoxicated.

16On cross-examination, Mr. Whitehead stated that he had made his assessment before going to speak to Mr. De Souza. This was before he had heard him speak or had had an opportunity to see his eyes or detect alcohol on his breath. Once he had made up his mind he had to stick with his decision.

17Mr. Whitehead stated that this encounter took two or three minutes and Mr. De Souza replaced the bottle of rum and walked towards the door. He then got in line for the cashier and picked up a gift set of Jack Daniels which he put onto the counter. He noted that Ms. Pridham refused to serve him. Mr. De Souza then went to the window of the liquor store and summoned for someone to come in. Shortly after, Mrs. De Souza entered the store.

18He testified that there was a confrontation with Mrs. De Souza and, towards the end of this discussion, Mrs. De Souza said something to the effect that her husband had been in an accident or that he was disabled. However, she did not try to purchase liquor for Mr. De Souza after making this disclosure.

19Ms. Pridham testified that she alerted Mr. Whitehead because Mr. De Souza was unsteady on his feet and was wearing dark glasses. He was not someone she had previously seen in the store. She then noted the discussion with Mr. Whitehead and concluded that Mr. Whitehead had told him that he would not be served. When Mr. De Souza approached with the Jack Daniels, she said "Sorry sir, I can't serve you at this time." Ms. Pridham stated that even if Mrs. De Souza had come to her and explained Mr. De Souza's condition, she probably would not have reconsidered her decision not to serve Mr. De Souza. The decision was made.

20Counsel for the Commission suggested that the decision had, in fact, been made by Mr. Whitehead before he approached Mr. De Souza and no reconsideration was possible after that. To some extent, this appears to be confirmed by the statements of some of the LCBO witnesses and by the LCBO training video which emphasizes taking a firm approach once a determination of possible intoxication has been made. However, in the circumstances as they unfolded, I am not prepared to find that Mr. Whitehead would not have altered his original assessment had he been given a reasonable opportunity to do so.

21There were various other inconsistencies in the details related by these witnesses but they do not appear to me to be of particular importance to the primary issue. Where there is a conflict between the evidence of the LCBO employees and that of Mr. and Mrs. De Souza with respect to the use of inappropriate language and holding up of Mr. De Souza to ridicule, I prefer the evidence of the LCBO employees.

22With respect to the significance of the absence of the odour of alcohol, other witnesses referred to the effects of spicy food and the difficulty of ascertaining whether a smell of alcohol was coming from clothing or even from breakage in the store itself. It was generally conceded that it was not a very reliable factor either way in deciding whether someone was intoxicated by alcohol. The point was also made that intoxication could also be caused by illicit drugs or certain types of medication.

THE B.C. COMPLAINT

23Mr. De Souza had previously lodged a complaint with the British Columbia Council of Human Rights over an incident which occurred on December 24, 1988, at a liquor store in Victoria, B.C. He had been accused of being drunk by a security guard in the store and ordered to leave the premises by the manager. It was also alleged that the manager instructed another security guard to follow Mr. De Souza to his car to make sure Mr. De Souza did not attempt to drive. This complaint was eventually settled after Mr. De Souza had moved to Ontario. The settlement consisted of an apology from the Liquor Distribution Branch of the Ministry of Labour and Consumer Services, a circular to liquor store staff on how to distinguish between a person who is drunk and a person with a disability and a payment of $2,000 to Mr. De Souza.

LCBO POLICIES AND TRAINING

24Considerable evidence was presented on the training received by LCBO staff with respect to their obligation not to sell liquor to anyone who appears intoxicated or under age and the recommended procedures for dealing with such people. This evidence was given primarily by Arthur Chatterton, a training consultant with the LCBO. As part of his evidence, the Board was shown a video of the SMAART (Strategies for Managing Age and Alcohol Related Troubles) program, which was produced in 1988, together with the 1992 versions of manuals to be used by the trainer and the training group in connection with the video. The video contained no references to possible problems involving persons with disabilities. The manual indicated that certain characteristics of intoxication are common to muscular dystrophy and cerebral palsy. It was indicated that these references were included because a vice-president of the LCBO has multiple sclerosis and Mr. Chatterton's daughter has cerebral palsy.

25Mr. Chatterton indicated that it did not enter his mind at the time the manual was being developed to flesh out this information and consider other disabilities. The information he had was received from Erinoak, a child treatment centre in Mississauga, with which he was apparently familiar through his daughter. He stated that he visited Erinoak again in the spring of 1992 to discuss the program and show the video. He asked at this time if they could do further work with their "youth group." Quite sensibly, they apparently suggested that the LCBO should develop its concerns with adults and the Head Injury Association of Ontario was recommended as a group which could provide some input. It was also suggested that the Cerebral Palsy Foundation might have more information and that agencies dealing with Huntington's chorea and Parkinson's disease might be helpful. These were put forward as types of disabilities with characteristics that could be confused with intoxication.

26In January 1993, Mr. Chatterton contacted these groups and sent out copies of the manuals. Directors of each of the groups apparently expressed interest in assisting the LCBO and a half-day meeting was convened at the LCBO offices on March 30, 1993. Nothing particular resulted from this meeting apart from a general agreement that there could be difficulty in distinguishing between intoxication and the characteristics of certain disabilities in certain individuals. The only suggestion apparently put forward was that persons with disabilities could be issued some sort of identifying cards. However, nothing firm was established with respect to criteria to be used by store staff to help distinguish persons with disabilities form those who were intoxicated. Some of the representatives present indicated they would like to review the matter further with their membership. As of the date of the hearing, the LCBO had not received any further information.

27Mr. Chatterton testified that the LCBO expected to produce a new SMAART video by late fall 1993 and that this would more fully deal with distinguishing persons who are intoxicated from persons with disabilities.

THE APOLOGY

28The letter referred to above dated July 3, 1991, from Mr. De Souza to Mr. Morrison was reviewed by Mr. Rick Redwood, Manager, Customer Service & Administration, of the LCBO. He responded by letter dated July 30,1991, and, after referring to the very heavy responsibility placed on people who serve or sell beverage alcohol under the current liquor laws in Ontario and referring to the SMAART program, he wrote to Mr. De Souza:

In review of your letter, it would appear that an error of judgment was made on our part in the interest of caution, however, I can assure you that the decision made was not for discriminatory reasons.

In view of the situation, we will look at including training on how to recognize disabilities which might be mistaken for impairment.

I wish to apologize for any embarrassment or inconvenience caused by this situation.

29Mr. De Souza responded by letter dated August 8, 1991, referring to the apology as "decidedly a load of garbage." Mr. De Souza demanded a public apology to all disabled persons and a training program for all liquor store staff with respect to persons with disabilities. He also indicated that he wanted Mr. Whitehead and Ms. Pridham summarily dismissed and compensation for his suffering.

MEDICAL EVIDENCE

30Counsel for the respondent directed considerable cross-examination to the questions of the medication which Mr. De Souza was on at the time of the incident and the extent to which the characteristics of his disability were exhibited on that particular date.

The examination with respect to medication appeared to be an attempt to establish that Mr. De Souza was taking Dilantin, as prescribed by his doctor, at the time of the incident and that this drug (or the improper discontinuance of it) could have been responsible to some degree for the condition of Mr. De Souza on July 2, 1991. In other words, Mr. De Souza might have been "intoxicated" by the medication. There was no evidence to support this theory and I take the submission to have been withdrawn by the letter from counsel for the respondent dated August 24, 1993.

31Mr. De Souza was also cross-examined at length as to the degree the characteristics of his disability manifested themselves on the date in question. Inconsistencies were shown between his evidence at the hearing and the way he described the extent of his walking and speech impediment in his complaint and in various correspondence. While this was directed, to some extent, at his credibility, I did not find it otherwise particularly helpful. Regardless of whose evidence is accepted, it is evident that Mr. De Souza's walking and speech were, on the relevant date, sufficiently impaired to provide grounds for suspicion that these might be signs of intoxication.

POSITION OF LCBO

32Counsel for the respondent made reference to ss. 29, 39 and 61 of the Liquor Licence Act, R.S.O. 1990, c. L.19 which governs the sale and distribution of liquor in Ontario:

29. No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.

30. The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person's intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person:

31. If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action under Part V of the Family Law Act lies against the person who or whose employee or agent sold the liquor.

32. If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor.

61(1) A person is guilty of an offence if the person,

(c) contravenes any provision of this Act or the regulations.

(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than one year or both.

(4) A corporation that is convicted of an offence under this Act is liable to a fine of not more than $100,000.

33Counsel for the respondent submitted that, because of the serious risks involved in permitting intoxicated customers to purchase liquor as well as the serious consequences to the LCBO and its staff in selling liquor under such conditions, the LCBO could not afford to give the benefit of the doubt where they had reason to believe someone might be intoxicated. She further suggested that, under these circumstances, the safety considerations of the Liquor Licence Act must be balanced against the interests being protected by the Code and given precedence.

34In response, counsel for the Commission referred to s. 47(2) of the Code which provides:

47(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply [despite] this Act.

35I agree the Code must be given primacy over the Liquor Licence Act. Minimizing the possibility of error between signs of intoxication and manifestations of disability is for LCBO training and awareness programs. In this regard, I find it interesting to note that none of the respondent's witnesses, many of whom had personally been responsible for hundreds if not thousands of refusals to serve, had ever been the subject of or even aware of a human rights complaint arising from a refusal.

ANALYSIS

36This case was presented as one of direct discrimination.

As indicated earlier, there is no dispute that Mr. De Souza has a handicap and this incident occurred within the context of the LCBO providing services. There is no evidence to indicate that Mr. De Souza was intoxicated whether by medication, drugs or alcohol. The only conclusion I can come to on the evidence presented is that the physical manifestations of his disability were mistaken for intoxication. Does such action constitute an infringement on Mr. De Souza's right to equal treatment with respect to services without discrimination, directly or indirectly, because of handicap? "Because of handicap" is defined in s. 10(1)(b) of the Code as meaning "for the reason that the person has or has had, or is believed to have or have had . . ." and then are listed a number of conditions of which there is no doubt Mr. De Souza has one or more.

37In Ontario Human Rights Comm. and O'Malley v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102, the Supreme Court of Canada stated at D/3106 [para. 24772]:

Direct discrimination occurs . . . where an employer adopts a practice or rule which on its face discriminates on a prohibited ground.

Some elaboration on this statement is found in Vizkelety, Proving Discrimination in Canada at 60:

In this sense "on its face" may reasonably be interpreted to mean not that the discrimination must be overt and admitted, but rather that the rule or practice must in some way have been based upon, influenced by or directly affected by one of the prohibited grounds.

38Counsel for the Commission cited Kellerman v. Al's Restaurant and Tavern Limited(1986), 1986 CanLII 6524 (ON HRT), 8 C.H.R.R. D/3924 for the proposition that a conclusion as to intoxication must be reasonably arrived at and take into account the possibility that some persons with disabilities exhibit characteristics similar to persons who are intoxicated. In other words, there can be direct discrimination through negligence.

39In that case, the owner of a restaurant refused to serve a glass of wine to Mr. Kellerman because he thought he was intoxicated. However, Mr. Kellerman had cerebral palsy, a condition which severely impaired his physical movements and his speech. There was evidence that he was not intoxicated at the time in question. In reaching his conclusion, the Board stated [at D/3929, paras. 31091–92]:

I have also concluded that because he was not served the wine he had ordered Mr. Kellerman was denied equal service because of his handicap. He was clearly not intoxicated. He had spent the morning at the Human Rights Commission discussing other matters with Mr. Fred Reuter, an officer of the Commission. Mr. Reuter saw him when he left the Commission, shortly before he arrived at Al's Restaurant. At the time, Mr. Kellerman appeared to Mr. Reuter to be his normal self.

It is unfair to persons in John Kellerman's position for tavern operators to judge a person's condition from afar. Mr. Zarafonitis was behind the bar, some distance from Mr. Kellerman, when he assessed his condition. Mr. Zarafonitis testified: "I just look over, you know, the way he look, I thought he was drunk." He did not take further steps to ascertain whether his suspicions were justified. Mr. Zarafonitis was therefore negligent in judging that Mr. Kellerman was intoxicated or apparently in an intoxicated condition. Those serving liquor should be aware of the problems faced by persons with handicaps like Mr. Kellerman's and should be aware that their initial impression may not be the correct one. Although the Liquor Licence Act of Ontario (R.S.O. 1980, c. 244, s. 43) makes it an offence to "sell or supply liquor . . . to any person in or apparently in an intoxicated condition", this provision must be interpreted in the light of the Human Rights Code which provides (s. 46(2)) that "Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply notwithstanding this Act."

40The evidence in this case is less clear. While many details are in dispute, I accept that Mr. Whitehead observed Mr. De Souza for several minutes from a distance of approximately twenty feet. Regardless of whose evidence is accepted, there is no doubt that Mr. De Souza was somewhat unsteady on his feet and appeared indecisive about his purchase. He was, unfortunately, wearing sunglasses and there was evidence given that LCBO employees recognize this as a common ruse to hide bloodshot eyes or dilated pupils. Mr. Whitehead approached Mr. De Souza and spoke to him. Mr. De Souza's speech was slurred and he responded in a manner which Mr. Whitehead found incomprehensible. No doubt, Mr. De Souza was angered at again being mistaken for being intoxicated but his response did nothing to alleviate the situation. Whether Mr. Whitehead stated that he was intoxicated or whether this was merely inferred by Mr. De Souza is irrelevant. Mr. De Souza did not indicate to Mr. Whitehead that he had a disability or even that he had been in an accident. Based on the evidence at the hearing, including correspondence and reports subsequent to the incident, I conclude that Mr. De Souza only told Mr. Whitehead that he was making an error in judgment. His other comments with respect to calling the police and having sued the B.C. liquor board were of little use in enlightening Mr. Whitehead as to his condition. In act, evidence was given that denials and comments such as these are common reactions when an LCBO employee refuses service.

41I concur with the Board in Kellerman, supra, that persons selling liquor should be aware of the problems faced by persons with certain disabilities and should be aware that their initial impression may not be the correct one. However, I find that here there was more than an initial impression from afar. While Mr. Whitehead may have formed such an initial impression while observing Mr. De Souza from down the aisle, Mr. De Souza had a clear opportunity to rectify the situation when Mr. Whitehead spoke to him. He did not do so. In my view, although reached with some reluctance, a person with a disability which he or she is aware can be and has been confused with intoxication has some obligation to attempt to correct an inaccurate impression. Mr. Kellerman was not given that opportunity; Mr. De Souza was. Under the circumstances, I cannot find that the conclusion reached by Mr. Whitehead, although clearly mistaken, was unreasonable in the circumstances. The subsequent refusal by Ms. Pridham flowed from this determination by Mr. Whitehead.

42I cannot find, on the evidence before me, that the treatment which the LCBO employees accorded to Mr. De Souza was based on, influenced by or directly affected by their knowledge or belief that he had a disability. They acted as they did on the basis that they perceived him to be intoxicated. Accordingly, I am not satisfied that the complainant has made out a prima facie case of direct discrimination.

43In attempting to justify the actions of the respondent's employees on the basis of the provisions of the Liquor Licence Act, counsel for the respondent made reference to s. 11(1) of the Code:

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances;

The exceptions provided for in this section relate to cases of constructive discrimination. Counsel for the Commission forcibly submitted that this was not such a case. Nevertheless, the issue has been raised and consideration appears necessary.

44I understand the argument to be as follows. There is a requirement in the Liquor Licence Act which prohibits the sale of alcohol to any person appearing to be intoxicated. This requirement, although neutral on its face, results in a restriction on a group of persons identified by a prohibited ground of discrimination; namely, those persons with a disabling condition ("handicap") having characteristics which could reasonably be mistaken for intoxication. Considering the laudable goals of public safety, health and protection from liability, these requirements are reasonable and bona fide and, consequently, do not constitute an infringement of a right provided by the Code.

45However, s. 11(2) of the Code provides that a requirement cannot be considered reasonable and bona fide unless the needs of the group of which the person is a member cannot be accommodated without undue hardship. This brings us to a consideration of the evidence given primarily by Mr. Chatterton and Mr. Redwood with respect to the training of the LCBO employees. At the time of this incident, training with respect to disabilities which might be mistaken for intoxication was virtually nonexistent. Since that time, there has been only a slight improvement with the addition of a few questions to the training manual. The efforts presently being made to obtain more input from representatives of disability groups appear to me, for an organization of the size of the LCBO and with its mandate in Ontario, to be amateurish and unduly limited in scope. Certainly the present status, as described in the evidence, is far from encouraging.

46In my view, this is a case of constructive discrimination, also referred to as adverse effect discrimination. Mr. De Souza is a member of the group adversely [a]ffected by the requirements of the Liquor Licence Act. Once a prima facie case of constructive discrimination has been made out, the burden of proof in establishing a defence under s. 11(1)(a) shifts to the respondent. The requirements of s. 11(2) with respect to accommodation without undue hardship constitute a necessary part of establishing this defence.

47Since no evidence and little argument was directed specifically to this analysis, I proceed with some trepidation. In these circumstances, it appears to me that the only type of accommodation which could be provided by the LCBO is through training and awareness programs for its staff. As previously stated, at the time of this incident, such programs were virtually non-existent. Accordingly, I am not satisfied that the LCBO has established a defence based on s. 11 of the Code.

REMEDY

48In his submissions as to remedy, counsel for the Commission took the position that he was not asking for an order that the LCBO cease the discriminatory practice because, as he stated:

The LCBO, I think it is clear through the evidence of Mr. Chatterton, is doing things. It recognizes the issue . . . In terms of strategies to prevent a recurrence, in my submission, we should leave it to Mr. Chatterton and his colleagues to do the work they are doing.

49Accordingly, I will not make such an order but I do strongly recommend that the LCBO consult with the Commission as to a more comprehensive consultation process with organizations of persons with disabilities in the development of its training plan in this area which, according to the evidence, is to be incorporated into the SMAART program and into a new video which is soon to be produced. I further urge that this include more flexible guidelines for reconsideration of initial determinations as to possible intoxication for situations involving persons with disabilities.

50Having made a finding of constructive discrimination, I exercise my discretion not to award general damages. In my view, Mr. De Souza was as much to blame as the LCBO employees for the development and escalation of the situation. No doubt, Mr. De Souza was angered by this experience but there was little evidence before me that there were any severe or long-lasting effects on his physical or mental well-being. I have also considered the apology offered to Mr. De Souza by Mr. Redwood on behalf of the LCBO in the letter of July 30, 1991, and Mr. De Souza's response at that time. In making this determination, I have considered the decisions of boards of [i]nquiry in Munsch v. York Condominium Corporation No. 60 (unreported, July 2, 1992: Maryka Omatsu and Peter A. Cumming, Ont. Bd.Inq. [now reported 1992 CanLII 14246 (ON HRT), 18 C.H.R.R. D/339]) and Hajla v. Nestoras (1987), 1987 CanLII 8545 (ON HRT), 8 C.H.R.R. D/3879. With respect to the latter case, I do not find, as urged by counsel for the respondent, that the complainant's sole motive in pursuing his complaint in this case was to receive financial gain.