Brock v. Tarrant Film Factory Ltd.
2000-04-04
Ontario Board of Inquiry
David Brock by his Litigation Guardian John Brock
Complainant
and
Ontario Human Rights Commission
Commission
v.
Tarrant Film Factory Limited and Tarrant Enterprises Limited
Respondents
Date of Complaint:
May 31, 1995
Date of Decision:
April 4, 2000
Before:
Ontario Human Rights Board of Inquiry, Matthew D. Garfield
Decision No.:
00-005
Appearances by:
Naomi Overend and Rena Shadowitz (student-at-law), Counsel for the Commission
John Brock, Litigation Guardian for the Complainant
Peter H. Mandell, Counsel for the Respondents
DISABILITY — discriminatory access to theatre for wheelchair user — PUBLIC SERVICES AND FACILITIES — discriminatory treatment in provision of theatre services — theatre access — BUSINESS NECESSITY — refusal to provide barrier-free access based on economic reasons — BURDEN OF PROOF — elements of a prima facie case
REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — Meiorin test for reasonable accommodation principle — DISCRIMINATION — Meiorin test
DAMAGES — injury to dignity and self-respect — REMEDIES — renovations to building for barrier-free access — LIABILITY — joint liability
Summary: An Ontario Board of Inquiry ruled that Tarrant Film Factory discriminated against David Brock by failing to provide a wheelchair-accessible movie theatre.
David Brock is now 18 years old and he loves movies. David has muscular dystrophy and uses a wheelchair. He lives in Newmarket and between 1993 and 1995 he regularly went to see movies at the Film Factory. This was no mean feat as the Film Factory was not wheelchair accessible.
The Film Factory has six theatres, each with five or six stairs at the front entrance, and each with a back entrance that opens to the parking lot. When David Brock first attended the theatre he used a manual wheelchair. He usually came with his father. His father would buy the tickets and the ushers would lift David up the five or six stairs so that he could enter the theatre. As David Brock got older and his muscular dystrophy progressed he required a motorized wheelchair, which was too heavy to lift. The new method was for David to enter and exit via the back entrance to the theatre which was showing the movie he wanted to see. His father would buy tickets and then he and David would wait outside for an usher to open the back entrance from the inside so that they could enter.
Once inside any of the theatres, David Brock faced another problem. There were no designated places for wheelchairs. Because of this, David was frequently bumped into by other patrons and could not sit at a comfortable angle. Also, there were no accessible washrooms for David to use.
The Board of Inquiry ruled that the Film Factory discriminated against David Brock by not providing an accessible facility.
Further, the Board of Inquiry found that Tarrant Film Factory had not accommodated David Brock to the point of undue hardship. The accommodations that the Film Factory offered were (1) having ushers lift David in his wheelchair up to the theatre entrance; (2) having ushers open the back door for David and his father to enter from the outside; (3) putting down asphalt at the back entrances to get rid of the gap between the door and the concrete to make wheelchair entrance easier; and (4) commissioning a proposal for renovations to make the Film Factory accessible. Though the Film Factory did some renovations in 1996, other than the asphalt, no renovations were made to improve accessibility. The Board of Inquiry concluded that the Film Factory came nowhere near the point of undue hardship based on cost in its accommodation of David Brock.
The Board of Inquiry accepted evidence offered by the respondents that Famous Players was expected to open a sixteen-theatre complex in Newmarket by spring 2001, and that this could have a serious impact on the Film Factory's future financial viability. However, the Board of Inquiry rejected the respondents' argument that this justified making no renovations to make its theatres accessible.
After examining the Film Factory's financial position, the Board of Inquiry concluded that the respondents could afford to make renovations at a gross cost of $60,000, which will amount to a net cost of significantly less after tax deductions and depreciation.
The Board of Inquiry ordered Film Factory to pay David Brock $3,000 in general damages, to prepare a plan for renovations costing up to $60,000 to be phased in over three years, and to immediately remove seats in the theatres to make designated spaces for wheelchair users. The Board of Inquiry remained seized of the matter. If the parties have not agreed upon a plan within six months, they may bring the matter back for a decision on implementation.
CASES CITED
Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 20
British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1, 35 C.H.R.R. D/257: 18
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129: 23
Central Okanagan School Dist. No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, 16 C.H.R.R. D/425: 22
Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1: 21
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: 21
LEGISLATION CITED
Canada
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11: 21
Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1
s. 20(1)(qq): 84
reg. 8800: 84
Ontario
Building Code Act, 1992, S.O. 1992, c. 23, O. Reg. 403/97: 7, 98
Business Corporations Act, R.S.O. 1990, c. B.16: 100
Human Rights Code, R.S.O. 1990, c. H.19: 2
s. 1: 16
s. 9: 16
s. 11: 19
s. 17: 19, 49
s. 41: 71
s. 41(1)(a): 71, 95
AUTHORITIES CITED
Sopinka, John, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992): 43
INTRODUCTION
1David Brock loves movies. From 1993–95 he frequently went to see movies at the Tarrant Film Factory Limited ("Film Factory") theatre in Newmarket. Attending the movies was no easy feat, for David Brock has muscular dystrophy, is reliant on a wheelchair and Film Factory is not wheelchair accessible.
2David Brock, now 18 years old, made a complaint in 1995 (amended in 1999), by his father and litigation guardian, John Brock, to the Ontario Human Rights Commission (the "Commission"). He claims that Film Factory and its landlord and affiliated company, Tarrant Enterprises Limited ("Tarrant Enterprises") discriminated against him in the provision of services because of his "handicap", contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
3Four years had passed since Brock's complaint, when the Commission referred the subject matter of the complaint to the Board of Inquiry (Human Rights Code) (the "Board") in April of 1999. The Board began its hearing process in that same month. Following an attempt at mediation and a pre-hearing case conference, the Board began hearing evidence on the merits in December 1999. This is my decision and reasons on the merits.
ISSUES
4I deal with the following issues:
Did the respondents discriminated against David Brock by not providing a wheelchair-accessible movie theatre?
If so, did the respondents meet the onus of showing they accommodated David Brock's handicap to the point of undue hardship?
If the above defence/exemption is not met, what remedy should I award?
DECISION
5The respondents discriminated against David Brock on the basis of handicap in not making the theatre wheelchair accessible. The respondents have not met their burden of proof of the exemption/defence of accommodation to the point of undue hardship. An award of $3,000 is payable to David Brock by Film Factory as damages for the loss arising out of the infringement of his rights under the Code.
6The respondents shall renovate Film Factory to make it wheelchair accessible up to a maximum of $60,000 over a three-year period from the date of this decision. The respondents are to formulate a plan and timetable of implementation (including cost estimates) based upon an expert's report (presumably from an architect). The $60,000 maximum is based on work that is feasible from an architectural/engineering perspective and satisfies statutory/regulatory requirements (including building codes and by-laws). The respondents are to get the approval of the other parties of said plan and timetable. If agreement has not been reached within six months from the date of this decision, the parties may bring the matter back before me to render a decision on implementation.
7Film Factory shall remove seats and provide designated wheelchair spaces (the number of which shall be in accordance with the formula in the Ontario Building Code, O. Reg. 403/97 as amended) in each of its six theatres within one month of the date of this decision. If there are any regulatory or other restrictions (other than cost) in doing so, the respondents are to advise the Board and the parties before the expiry of one month.
FACTS
8David Brock resides in Newmarket with his parents and attends high school. One of his interests is movies. He testifies that he goes to see three to four movies a month at various theatres. The two theatres he frequented in Newmarket at the time of the complaint were Famous Players' Glenway (which is wheelchair accessible) and Film Factory, the latter being closer to his home. He gives evidence that he used to go about twice a month to Film Factory.
9Film Factory is not wheelchair accessible. Its sole shareholder, director and officer is Mrs. June Tarrant, a thirty-year veteran in the independent movie theatre business. Mrs. Tarrant testifies that the building housing Film Factory is an old foundry converted into a six-theatre complex by Film Factory in 1983. The property is owned by Tarrant Enterprises, whose sole shareholder, director and officer is Mrs. Tarrant. Tarrant Enterprises leases the building to Film Factory. There is no written lease between the two corporations.
10Mrs. Tarrant's evidence is that the theatre building is located on the Holland River plane. Accordingly, there are very strict requirements regarding renovations which require the approval of different governmental bodies, including the Lake Simcoe Conservation Authority. Ample parking surrounds the building. Also on the property is another building which houses a bowling alley (owned by Tarrant Enterprises) and an administration building where Mrs. Tarrant and staff have their offices.
11Film Factory houses six theatres or auditoria, all in varying sizes, with theatre one being the largest. They are all accessed internally via a set of stairs (five to six steps) leading to a door. Inside each theatre is a sloping aisle or ramp whereby patrons walk up or down to get to their seats. In some of the theatres, every consecutive row is indented at the aisle. As Mrs. Tarrant describes in her testimony, the theatres are by no means akin to the modern multiplexes like Famous Players' Silver City.
12The entrance to Film Factory is on the northeast side of the building. Each theatre has a back exit which patrons may use. As David Brock testifies, he entered and exited via the back entrance. There is also a concession (popcorn, pop, etc.) stand in the lobby with washrooms beside it. Neither David Brock nor the Commission complain of the washrooms or seek a renovation order regarding the washrooms. However, they do seek alterations to the concession stand and the drinking fountain to make them accessible to people in wheelchairs and scooters.
13When David Brock first attended the theatres, according to his and his father's testimony, he used a manual wheelchair. He usually came to the movies with his father. His father would buy the tickets and ushers voluntarily agreed to lift David Brock in his chair up the stairs to the theatre or auditorium. I note that neither David nor John Brock say under oath that the staff/ushers were anything but polite and helpful. When inside the theatre, David Brock would sit in his wheelchair at the end of the row on the aisle. John Brock would try to sit in a seat beside him.
14As David Brock got older, and the muscular dystrophy progressed, he required the use of a motorized wheelchair. The new method was for David Brock to enter and exit via the back or side entrance (depending on which theatre he attended). The practice was for John Brock to buy the tickets, ask an usher to open the back door from the inside and let them into the auditorium.
15On January 16, 1995, John Brock wrote to Film Factory describing the problems David Brock was experiencing going to their theatre and asked that they renovate the building to make it wheelchair accessible. Mrs. Tarrant wrote back on behalf of the respondents on May 3, 1995, saying that they would put down the asphalt at the exit doors in June when the weather permitted. On May 31, 1995, John Brock filed a complaint with the Commission against Film Factory and Tarrant Enterprises, the subject of which forms the basis of the hearing before me.
THE LAW
Direct and Adverse Effect Discrimination and the Duty to Accommodate
16Section 1 of the Code provides that, "Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of ... handicap". Section 9, the general prohibition section, states that, "No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part". The Commission has the legal burden of proving that the respondents contravened ss. 1 and 9 of the Code.
17In its pleadings, the Commission argues that the respondents violated ss. 1 and 9 of the Code. However, the Commission (represented at the hearing by different counsel) now argues that this case, although containing elements of direct discrimination, is more of a s. 11 nature, that is, constructive or adverse effect discrimination. Adverse effect discrimination involves a restriction or burden not apparent on its face, e.g., a seeming neutral rule, which adversely effects the individual or group to which the individual belongs based on one of the prohibited grounds, in this case, "handicap". Direct discrimination involves an obvious or apparent discriminatory practice. Sometimes it is difficult to distinguish between the two concepts in a particular case. This complaint is more akin to direct discrimination. My analysis will consider whether s. 1 was violated and whether the s. 17 defence/exemption was met.
18The question of whether this complaint involves direct or adverse effect discrimination is not terribly important for several reasons. First, the Supreme Court of Canada has recently written in British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U.(1999), 1999 CanLII 652 (SCC), 176 D.L.R. (4th) 1 [35 C.H.R.R. D/257] (the "Meiorin case") that the courts and human rights tribunals across Canada should abandon the traditional distinction between direct discrimination and adverse effect discrimination and instead adopt a "unified approach" towards discrimination and any defence thereto.
19Secondly, the distinction is not so important here as both ss. 11 and 17 prescribe a duty to accommodate to the point of undue hardship, taking into account "the cost, outside sources of funding, if any, and health and safety requirements, if any". In the Brock case, the respondents only argue the cost part and not the outside source of funding or health and safety aspects.
Prima Facie Discrimination and Dignity
20The Commission has the burden of proving a prima facie case of discrimination on the balance of probabilities. "Discrimination" as a term is not defined in the Code. However, courts and human rights tribunals across Canada have written much about what the term means. Most helpful is the Supreme Court of Canada's definition in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at 175 [10 C.H.R.R. D/5719 at D/5746, § 41759]:
... I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
21At the heart of discrimination is the question of dignity. The concept of dignity was addressed by the Supreme Court of Canada in Law v. Canada (1999), 1999 CanLII 675 (SCC), 170 D.L.R. (4th) 1. The case involved a s. 15 "equality rights" claim under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. The concepts and principles are analogous to those rights guaranteed under the Code, a statute that the Court has held should be treated as a quasi-constitutional law: Ontario (Human Rights Commission) and O'Malley v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 at § 24766 [D/3105] (S.C.C.). In Law, at § 53, the Court writes:
What is human dignity? ... As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519 at p. 554, 107 D.L.R. (4th) 342, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits ... Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.
Duty to Accommodate and Undue Hardship
22The threshold for establishing this defence/exemption is a high one. In Central Okanagan School District v. Renaud (1992), 1992 CanLII 81 (SCC), 16 C.H.R.R. D/425, the Supreme Court of Canada rejected the American de minimus test for accommodation. At § 19 [p. D/432] the Court writes:
The Hardison de minimus test, supra, virtually removes the duty to accommodate and seems particularly inappropriate in the Canadian context. More than mere negligible effort is required to satisfy the duty to accommodate.
23The Supreme Court of Canada recently in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] S.C.J. No. 73 [reported 36 C.H.R.R. D/129] (the "Grismer case") clarified the test for undue hardship set out earlier that year in the Meiorin case. At § 41 [D/142] the Court writes:
... While in some circumstances excessive cost may justify a refusal to accommodate those with disabilities, one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment.
The Grismer case involved a government respondent with significantly greater resources than a small independent theatre company like Film Factory. However, the general principle is applicable to government and private sectors alike. Both counsel for the Commission and the respondents agree that the threshold for accommodation is high.
ANALYSIS
Did the respondents discriminate against David Brock by not providing a wheelchair-accessible movie theatre?
Evidence
24As indicated above, David Brock attended Film Factory using two methods: at the beginning, being lifted in his manual chair by ushers via the interior theatre entrance; and later in his electric wheelchair by entering and exiting via the back exterior door to the theatre.
FRONT/INTERIOR DOOR — USHER METHOD
25According to David Brock's and his father's testimony, initially when David Brock went to Film Factory in 1993–94, he would go in a manual wheelchair (which is significantly lighter than a motorized one). He usually came to the movies with his father and sometimes with an attendant. His father would purchase the ticket. David Brock would enter through the inside entrance to the theatre. His evidence is:
In my manual wheelchair, I had to be lifted by two ushers over steps. I was worried that I would be injured if they dropped me. The ushers could also hurt themselves. I would go to the washroom before because it would be inconvenient at the theatre needing to be lifted.
David Brock testifies that he "didn't feel pain or discomfort going to other [wheelchair-accessible] theatres. I felt awkward and discriminated against when going the front way with attendants' help too. It didn't upset me having my dad help me".
26According to the testimony of the Brocks, the problems with this method were: (1) the rows were not even so David Brock would be sitting on an angle, which put stress on his neck and shoulders; and (2) due to being on the end, especially in the dark, patrons would sometimes bump into David Brock's wheelchair, which was distressing to both David Brock and his father (not to mention the patron). It was less than an ideal situation.
27When David Brock's disease worsened, he was required to use a motorized wheelchair. Thus, the method of getting into the theatre with the ushers lifting him was no longer available, with the electric wheelchair and David Brock together weighing over 400 pounds. John Brock gives evidence that they stopped using the usher method in approximately 1994. A new method was now used as described below.
BACK DOOR METHOD
28David Brock says under oath that he enjoyed going to Film Factory because it was close by and had the movies he wanted to see. His father gives evidence that the motivating factor in choice of theatre was his son's choice of film to see. They would go to the Famous Players' Glenway in Newmarket, Colossus at Highways 400 and 7, Elgin Mills in Richmond Hill.
29When at Film Factory, David Brock testifies that his father would go to the front entrance and purchase the tickets at the ticket booth (which was not wheelchair accessible), then they would go out the main entrance and go to the back of the building and wait for someone to open the exit door to the individual theatre. David Brock says they would alert the ushers and someone would open the back door. In summer it was okay but in the winter he sometimes had to wait outside for more than five minutes. That was not acceptable according to David Brock's evidence.
30Until John Brock complained to the management and they put in asphalt ramping to even out the back driveway and the back exit doors, there was a gap between the outside concrete and the back doors. This made it difficult to get the wheelchair in.
31When the outside door was opened, David Brock and his father (or whomever he was with) would enter and go to the front and sit in the aisle next to the seats. He indicates that he was:
on an angle. It's very uncomfortable. I would feel pressure in certain areas. My feet would hurt. My butt would hurt. I would end up slouching because of the discomfort. People would often bump into me. They didn't realize I'm in the aisle. I had problems with people getting around me and the aisles aren't that wide.
32John Brock's testimony corroborated his son's testimony. The father gave the same evidence on the procedure of buying the ticket to getting into the theatre and watching the film. After the back exits were ramped with asphalt, John Brock gives evidence that he and his son went to Film Factory "maybe five or six times" and in more than one theatre auditorium via the back entrance method. John Brock corroborated David Brock's evidence on being bumped into in the theatre. John Brock states, "Occasionally people would bump into David. It's a little nerve racking being nervous about someone bumping into you from behind".
33John Brock testifies that he was concerned with the back door entrance for many reasons. One was that it was an undignified way for David Brock to go to the movies at Film Factory. Another involved safety and fire concerns. There was only one exit in case of a fire. He was also concerned about being in the back in the parking lot, specifically that cars could pose a threat to David Brock's safety.
34David and John Brock feel that this method of going all around the back of the building and waiting for the usher to open the back theatre door lacked a dignified means of going to the movies. As well, sometimes they would be waiting in the winter behind the building for the usher to open the back door. In cross-examination, respondents' counsel suggested that they need not have gone outside all around the building to the back. They could have gone down either queuing areas one or two. Film Factory's floor plan (Exhibit 3) shows a long corridor leading to a back exit door between theatres one and two and the other between theatres two and three. John Brock acknowledges that it was possible to do that. On redirect, he testifies that:
the queuing areas were busy with people lining up. We could have entered via those back doors. I don't believe they were locked. It was inconvenient to ask the usher to go around and time the opening of the door. We went all around and back into the theatre if David was coming from the washroom rather than go down the queuing aisle. We fell into the habit of going outside because some of the theatres are not accessible through the queuing aisles.
35Another issue of concern for the Brocks was going to the washroom once inside the theatre. Both David and John Brock testify that David Brock wouldn't drink before a show. Despite this concern, and as noted above, neither the Commission nor the complainant is asking for an order to renovate the washrooms. There may, however, be an Ontario Building Code requirement that once any extensive renovations are undertaken to make a facility accessible, the washrooms must also be accessible. This was not raised by any of the witnesses or parties.
36Both father and son testify that there was a problem with seating. As the photos of Film Factory's interior and exterior (Exhibit 2) show, there is no designated handicapped seating in the six theatres. This meant David Brock sat next to the end of the row of seats. It was sloped and not on a flat surface. In her testimony, Mrs. Tarrant indicates that she would be agreeable to removing seats and making them designated handicapped spots in each of the six theatres in accordance with the current Ontario Building Code. She says she thought about this after listening to David Brock's testimony.
Expert Evidence of Catherine Frazee
37Ms. Frazee gives expert evidence for the Commission. She is qualified as an expert in equity, human rights and disability issues. She is a former Chief Commissioner and sat on the Commission from 1985–92. She is currently a part-time faculty member at Ryerson University and an activist in the disabled community. She is well published in the fields in which she has been qualified as an expert and has been a frequent presenter at conferences.
38Ms. Frazee discusses under oath the traditional medical/biological model of framing disability and the emergence of the social model in the late 1950s. The social model looks at disability issues not as a medical/biological phenomenon but as a social/political/economic one. Disabled people feel the heart of the issue is not centred around the physical things they can't do but the barriers presented in society — "the barriers of being" vs. "the barriers of doing".
39Ms. Frazee testifies about "disability disadvantage" and the effect of stigma, devaluation, exclusion, stereotypes, and limited expectations of the disabled person. She stresses that there is a tendency to focus on the physical needs of the individual with a disability. There are also the social needs — e.g., going out with friends or a date to a movie. She asks what does it really mean to "go to the movies"? It is not just entertainment. She remarks, "David may one day be a parent and want to take his kid to the movies". She talks of the importance of independence and suggests that there are some people with disabilities that could and wish to go to the movies alone.
40The expert testifies that "back door" treatment of a person with a disability is a signal of this devalued status in the eyes of society. Walking through the back entrance where there may be garbage or where less finishings or appointments have been used is less than the front entrance. It shows a subtle pattern of discriminatory treatment of people with disabilities.
41Ms. Frazee was asked who should bear the cost of accommodating a disabled person's need to be free from barriers to being. In reply, she asserts that a disability is a social status as much as a physiological status. Therefore, the burden of disability should be borne not just by the disabled person and his/her family but by the system or social group that benefits from the barriers.
42She remarks that people with disabilities are seen and treated as "the other". When personal dignity is disregarded, this constitutes an assault on the person, the person being robbed "of the stuff of which self respect is made".
43While Ms. Frazee's evidence was informative and interesting, its use in assisting me in my deliberations is of a more limited nature. An expert's evidence is not to be used to usurp the trier's responsibilities. As Sopinka et al. in The Law of Evidence in Canada (Butterworths, 1992) write at p. 534, "It has been said that the hallmark of admissibility simply should be whether the experts' testimony would be helpful to the tribunal". As a whole, Ms. Frazee's evidence assists me in understanding general issues as they affect persons with disabilities. This in turn assists me when considering the appropriate remedy.
Findings
44Applying the law to the facts at hand, I am satisfied that a prima facie case of discrimination has been proven. Respondents' counsel correctly argues that there is no definition of "discrimination" in the Code and provided me with dictionary definitions. Those are helpful. Even more helpful is the Supreme Court of Canada's definition in Andrews which I quoted earlier.
45In the instant case, there is a distinction of not being able to access and use the theatres between David Brock and those who can walk into the theatres. It is based on David Brock's immutable characteristic of being a person with a disability, specifically one who is reliant on a wheelchair. It has the effect of imposing a burden or disadvantage and limiting access to benefits by David Brock that those who can walk don't experience when going to Film Factory.
46David Brock's and his father's evidence illustrate the following:
(1) initially he had to be carried by ushers through the front door of the theatre;
(2) later when going through the back door, it was the only entrance/exit for him while others had use of the interior door. There is a stigma attached to using the "back door" as well as logistic problems of waiting for the usher, which was uncomfortable during the winter time;
(3) before the asphalt ramps were completed, the entry via the back door was problematic;
(4) once inside the theatre, there was no designated seating. David Brock and his father both testified that he had to sit in the aisle and people would sometimes bump into him; and
(5) having to sit in such a position caused physical discomfort for David Brock.
47Taken as a whole, I find that Film Factory did discriminate against David Brock by not providing an accessible facility. A reasonable person with a disability similar to David Brock's would feel demeaned by this movie-going experience. The service offered to David Brock was restricted and inferior to that offered to and experienced by the non-disabled patrons.
Did Film Factory accommodate David Brock to the point of undue hardship?
48Having found that a prima facie case of discrimination has been established, the burden now shifts to Film Factory to persuade me that it accommodated David Brock's "handicap" to the point of undue hardship.
49Section 17 requires a respondent to accommodate the complainant to the point of undue hardship. For me to determine whether Film Factory has met this defence or exemption, I need to look at the steps it actually took to accommodate David Brock. After identifying those steps, I need to address whether those actions reached the point of an undue hardship for Film Factory, taking into account the issue of cost in this case. The test is not whether what the Commission and the complainant are proposing (i.e., the renovation order) constitutes an undue hardship, but what Film Factory actually did and whether that reached an undue hardship. If I find that Film Factory's actions fell below an undue hardship, then the s. 17 defence is not met and in dealing with remedy, I will look at the appropriateness of any renovation order.
Evidence
50Mrs. Tarrant testifies that she only became aware of David Brock's problem when his father wrote a letter in January 1995 asking Film Factory to renovate and become wheelchair accessible. She indicates that they agreed to put asphalt down at the back of each exit door to the theatres to get rid of the gap between the door and concrete. This was done in June 1995 when weather permitted. They also sent Mr. Brock free movie tickets. Exhibit 24 was entered which is the invoice for the asphalt and some other work. Interestingly, no dollar amount is listed. The Commission and the complainant contend that the asphalt was not properly done and that there is still some difficulty getting into the theatre via the back doors.
51When asked about what things Film Factory did to accommodate David's disability, Mrs. Tarrant replies that they put down the asphalt. When asked later if she considered removing seats and designating them for wheelchairs, she says that as of David Brock's testimony, she thought it was a good idea and would be agreeable to doing it.
52Much of the cross-examination of Mrs. Tarrant involved the proposed renovation plans for Film Factory. Exhibit 14, the Commission's sponsored Barrier Free Design Report was entered. To do extensive renovations to make the theatres accessible (except for theatres 5 and 6), the consultant in his report estimated a cost of $52,000–$64,100. Mrs. Tarrant says that construction costs are always higher than the stated amounts. The respondents did not present any evidence on the cost of making the theatres accessible.
53The evidence indicates that in late 1996 or early 1997, Film Factory did make repairs and improvements (including new carpet, upholstery, paint) to the theatres and building in general. However, none of it was directed to making the theatres wheelchair accessible. Indeed, in the summer of 1996, Film Factory had commissioned Peter J. Bird, architect and consulting engineer, to make a report (Exhibit 15) about doing extensive renovations to the theatres which would have included accessibility concerns.
54In a letter from Film Factory to the Commission dated February 6, 1997 (Exhibit 23), Mrs. Tarrant's "right hand person", Wendy Lewis (the respondents' controller), wrote about a more modest renovation plan involving theatres 1, 2 and 3:
It is anticipated that screens 1–3 will have wheelchair accessible entrances inside the theatre by the end of 1997. We had paid for initial plans to raise the roof so that all 6 screens would be accessible but could not justify the cost. Relocation of the theatre may be a future option.
55The work was never done. Ms. Lewis and Mrs. Tarrant give evidence that the reason was due to the initial rumour and later the certainty of Famous Players building a sixteen-screen multiplex in Newmarket. They say that that would put Film Factory out of business and therefore it would be foolish to spend such a considerable sum of money. Mrs. Tarrant says under oath that she knew the only way to make the theatres wheelchair accessible by building ramps in the interior was to extend the building height and lift the roof. She says that she paid over $11,000 for architect preliminary drawings. Mrs. Tarrant testifies:
Bird had elaborate plans for accessibility. We wanted to put in stadium seating. However, the project never went out to tender. We got some costs, bits and pieces. We knew it would cost a fair amount of money ... We stopped after my call to the president of Famous Players. We got cold feet.
56The conversation she was referring to occurred in September 1998. Mrs. Tarrant avers that the President of Famous Players indicated that they would be moving into Newmarket with a new multiplex, state-of-the-art facility. Mrs. Tarrant says she knew of the rumour to this effect as far back as 1996. Exhibit 16 is a letter from Famous Players' counsel dated November 24, 1999, regarding the proposed Newmarket sixteen-screen complex, "... a December 2000 opening is premised on a very tight construction schedule and if this time frame cannot be met, then we will open in May of 2001".
57Mrs. Tarrant testifies that the options for Film Factory were: (1) move the theatres to the Canadian Tire Building; (2) do the expensive renovations, including making it wheelchair accessible and putting in stadium seating; and (3) do more modest renovations, including putting in wheelchair-accessible front doors for theatres 1–3. This all ended after the conversation with Joe Peixote, Famous Players' then-president.
58In cross-examination, it was put to her that Film Factory never mentioned to the Commission about the Famous Players sixteen-screen complex in Newmarket and its concerns and that "you didn't do it [the renovations] because it cost too much money and not because of Famous Players". Mrs. Tarrant responded, "I won't agree with that ... Both cost and Famous Players opening made me not do it [renovations]. The grand plan was axed after learning of Famous Players".
59It is difficult to determine what the basis was for Film Factory's decision not to provide any wheelchair-accessibility type renovations. Based on Mrs. Tarrant's and Ms. Lewis's testimony and the relevant exhibits, I conclude that both cost and the anticipated Famous Players sixteen-screen complex were factors. However, this finding will not determine the question of whether Film Factory accommodated David Brock to the point of undue hardship at the time of the complaint in 1995.
ACCOMMODATING DAVID BROCK NOT A PRIORITY
60Accessibility issues didn't take a high priority with Mrs. Tarrant and Film Factory. Indeed, in the spring of 1997, according to Mrs. Tarrant's testimony, Film Factory made repairs/renovations including new carpeting, reupholstering, new glass brick wall outside the washrooms and a new concession booth. She testifies:
I have no idea of the cost. We did all those things while staying opened. I was embarrassed by the aesthetics of the theatre. I didn't want to say it was my theatre anymore. I wasn't embarrassed by wheelchair inaccessibility because I thought exit doors were not a problem.
61Ms. Lewis testifies that she didn't think they were providing the best possible solution for accommodating people in wheelchairs. She says that the idea was to "spend some money to keep it open. Spend as little as possible given the rough times ahead. We would be profitable until Famous Players [sixteen-screen complex] opens up".
62I am satisfied from Mrs. Tarrant's and Ms. Lewis's testimony that Film Factory viewed John Brock's Code complaint as a nuisance. Mrs. Tarrant says, "He irritated me because he kept it up. No other wheelchair person had ever done this". Commission counsel asked, "This is the first time someone had the audacity to complain against you?" Mrs. Tarrant responded in the affirmative.
63Based on the documentary evidence tendered and the testimony of Mrs. Tarrant and Ms. Lewis, I find that Film Factory was not so concerned about accommodating David Brock's disability. Its idea of what constitutes undue hardship falls below the legal threshold. David Brock's and his father's complaint to them followed by the complaint to the Commission were mere hindrances. Mrs. Tarrant says under oath that she thought the asphalt behind the rear doors was sufficient. In Ms. Lewis's letter of February 6, 1997 (Exhibit 23), she states that renovations to theatres 1–3 would be done by the end of 1997. They never happened. They spent on new carpeting, upholstering, but nothing to deal with the accessibility issues, other than the asphalt and the Bird report.
Findings
64I find that Film Factory has not come anywhere near the point of undue hardship based on cost in its accommodation of David Brock's disability. The evidence of Mrs. Tarrant, Ms. Lewis, David Brock and John Brock clearly demonstrate that Film Factory's accommodation consisted of the following:
(1) having ushers lift David Brock over the stairs into the theatre;
(2) having an usher open the back door for David Brock and his father to enter the respective theatre via the back entrance;
(3) slapping down some asphalt over the gap between the back doors and the concrete; and
(4) commissioning a proposal (Exhibit 15) by architect and engineer Peter J. Bird which included renovations dealing with accessibility issues.
65In her evidence, to Mrs. Tarrant's credit, she acknowledges that it would be a good idea to remove some seats in each of the six theatres for wheelchair patrons to sit. However, as this was never done, it does not constitute an action that Film Factory took at the time of the complaint to accommodate David Brock's disability.
REMEDY
66As I have made a finding that Film Factory discriminated against David Brock and that its defence/exemption of accommodation to the point of undue hardship fails, I now turn my mind to the question of remedy.
Damages for Loss Arising from the Infringement
67The Commission is not claiming damages for mental anguish. However, counsel for the Commission argues that Film Factory was wilful in its behaviour by disregarding and dismissing David and John Brock's concerns. Counsel submits that they had an obligation since 1988 when the Code was amended or at the latest by 1995 when John Brock brought the issue to their attention to make the necessary changes to accommodate David Brock and others in wheelchairs. I agree that Film Factory's obligation to accommodate began in 1995 when John Brock brought the matter to its attention. I would also add that it is most unfortunate that the Commission took four years of investigation and consideration to refer the matter to the Board in 1999.
68Counsel for the Commission asks that I make an award for damages for loss arising from the infringement in the range of $2,000–$8,000. Respondents' counsel argues that David Brock has suffered no damages for loss arising from the infringement and accordingly no damages should be awarded.
69I do not accept that David Brock experienced no loss arising from the infringement of his rights under the Code. His loss includes being denied the ability to go to the cinema in a dignified and safe manner. The loss involves both a physical and psychological component and relates to the access to the theatre and the enjoyment of the "movie experience" to which non-disabled patrons are accustomed. Catherine Frazee's expert evidence was useful with regards to the physical and psychological aspects of the "movie experience" for persons with disabilities like David Brock.
70Having reviewed the awards in similar cases, to compensate David Brock for the loss experienced, I award him $3,000.
Renovation Order
71Section 41 of the Code gives a broad remedial power to the Board. Section 41(1)(a) provides that where the Board finds the Code has been infringed, the Board may, by order:
direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices;
72The test in the remedial part of this decision is what would be an appropriate renovation order in the context of s. 41(1)(a) in all the circumstances. To do that, I must consider whether the Commission's renovation plan would be viable and achievable by Film Factory.
Barrier Free Report
73The Commission and the complainant want me to order Film Factory to make its facility wheelchair accessible. As I indicated earlier, the Commission tenders as Exhibit 14 the Barrier Free Report (the "Report") it had commissioned to make recommendations regarding Film Factory. The Report is dated November 1998 and was done by Barrier-Free Design Consultants. The respondents did not tender any report of their own and offer no cost estimates of renovating the facility. Mrs. Tarrant says under oath that she believes it would be more expensive than the figure in the Report as there are usually overruns with any construction project.
74The Report is helpful to a very limited extent in identifying the nature and general cost of the renovations needed to make the facility wheelchair accessible. However, its authors readily admit on p. 2:
Building drawings were not available for review at this time. To fully evaluate the scope of the work required to remove barriers to access in this theatre, review of building drawings, in-depth consultation with architects, structural engineers, code and cost consultants, building officials, and others would be required..[Emphasis added.]
75With regards to "fire and life safety issues", the Report at p. 3 states:
For this review, options are discussed for the provision of accessible entry to auditoria while continuing to provide safe paths of egress. However, building plan reviews would be required to determine specific solutions that meet code requirements. This review is beyond the scope of this report.
76The Report lists modification options for the building, theatres 1–3 and 6. However, it states at p. 6:
An in-depth review of all considerations and options to meet fire and life safety requirements would be required. Therefore, the modifications cited below identify some but not all options to be considered in attempting to provide access to these premises.
A note on p. 7 reads:
Provisions for modifications to Cinemas Four and Five have not been cited as these cinemas do not adjoin public internal corridors, thereby omitting the possibility of secondary entrances. There appears to be insufficient space for other technical options such as lifts to provide internal entry to these auditoria.
77The Report has estimated the cost of putting in designated wheelchair spaces for the four theatres but not theatres 4 and 5. Regarding cost estimates of modification options, the Report reads at p. 8:
More accurate costing would be available as design options are selected and developed. Therefore cost estimates at this stage are very preliminary. [Emphasis added.]
78The Report also recommends at p. 7, "Repair exterior paving at all entry and exit doors to provide even, level surface conditions". However, no cost estimate is given. The Commission contends that the asphalt done by Film Factory was less than perfect and asks me to order that it be redone.
79The authors have severely qualified their report in several instances. Their total cost estimate for the work they recommended is $52,100–$64,100. It does not include doing anything that would make theatres 4 and 5 accessible other than redoing the asphalt on the back doors (the cost of which is not estimated). This Report is a preliminary one. It does not address the important issue of whether the recommended work is structurally feasible. It does not address any potential environmental issues, given that the building is located on a flood plane and is subject to strict building requirements. Its cost estimate is not very helpful for several reasons: first, the Report is over a year old and the estimates may no longer be accurate; secondly, the cost estimates are "very preliminary"; and thirdly, because the architectural, engineering and environmental issues were not addressed, it is impossible to estimate the true cost of doing those renovations.
80Unfortunately, I have nothing else before me by way of evidence of the feasibility. The respondents did not call any evidence to refute the Report.
Renovations: Tax Consequences and Can Film Factory Afford them?
81The financial statements of both respondents for the last five years were entered as exhibits. The only evidence I have regarding the cost of the renovations is contained in the Report. The only expert evidence dealing with whether the respondents can afford to make such renovations, including tax consequences, was from the Commission's expert witness, accountant Sante Cardinale. Mr. Cardinale was qualified on consent as an expert in general accounting principles and interpretation of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, as amended. Mr. Cardinale is a certified general accountant. His evidence deals with the cost of the renovations from a tax perspective and whether the respondents have the financial ability to shoulder the cost of the renovations as found in the Report.
82Mr. Cardinale gives evidence about the special tax treatment of small business corporations in Canada like the respondents. He testifies that the two respondent companies and two other companies which Mrs. Tarrant has a majority ownership are deemed "associated companies", a term in the Income Tax Act which means they are effectively controlled or owned by the same individuals (in this instance by Mrs. Tarrant who owns 100 percent of the shares in the two respondent companies and 51 percent in the two other companies). The four associated companies determine how to use among themselves the small business deduction for each given tax year.
83Mr. Cardinale also testifies about the tax consequences of doing renovations to make Film Factory wheelchair accessible. He had reviewed the financial statements of Film Factory and Tarrant Enterprises and put together a comparative table and summary of financial information (Exhibit 43) of the two companies, including summarized statements of income, balance sheet and estimated net income. The respondents did not challenge the accuracy of Exhibit 43 which was based on the financial statements of the two respondent companies.
84Mr. Cardinale discusses in his testimony the different tax consequences for making renovations in the nature of disability improvements as outlined in the Report. One must determine if the expenditure is a current one (which allows for an immediate full deduction from income) or capital in nature (which may be depreciated over time). Section 20(1)(qq) of the Income Tax Act and Regulation 8800 (prescribed renovations and alterations) deal with certain disability improvements which may be treated like current expenses and be fully deducted in that year against capital. Mr. Cardinale indicates that a business prefers to have an expense treated as current and deducted fully in that year rather than having to depreciate it over a number of years.
85Some improvements are prescribed. Others are not and a judgment call has to be made as to whether they are current or capital expenditures. Of course, Canada Customs and Revenue Agency may challenge the taxpayer's treatment of the expense and the taxpayer may avail himself of the review mechanisms within the Agency and then through the courts.
86The tax treatment of the renovations in the Report is important as the net cost or after tax cost is a factor to be considered in determining the respondents' financial ability to make the renovations. Mr. Cardinale reviewed Exhibit 2 (photos of the interior and exterior of Film Factory) and the Report (Exhibit 14). He lists some of the expenditures which are current or prescribed and those which would be capital in nature: door openers are prescribed; modified seating is a grey area — it could be either; floor preparation could be either; and unforeseen risk factor would be capital. Mr. Cardinale feels that the capital expenses total approximately $33,500 plus a possible $1,600 and current or prescribed expenditures of approximately $20,000. These figures do not include architect's plans and drawings, engineer's reports, necessary approvals of governmental agencies, etc.
87Using the four criteria of net income for the year, working capital, cash balance as at May 31, 1999, and the cost and value of the land and building, Mr. Cardinale testifies that Film Factory and Tarrant Enterprises together and each on its own can afford to make the improvements to the tune of approximately $60,000. "The cash in Film Factory speaks for itself". Even if Film Factory closed in 2001 because of loss of revenues due to the Famous Players sixteen-screen Newmarket complex opening, Mr. Cardinale indicates that Film Factory would still have a significant amount of the cost of the renovations to "write off" in the nature of capital and non-capital losses.
88If one looks at the financial statement of the two respondent companies from year ends 1995–1999, one sees that combined the companies had net income of a high of $386,163 in 1995 to a lower figure of $289,460 in 1999. Film Factory had a working capital of $723,691 in 1998 and $543,277 in 1999. As at May 31, 1999, Film Factory had a cash balance of $596,839. If present profit levels are maintained, I find that the respondents could afford to make renovations at a gross cost of $60,000 and a net cost of significantly less after tax deductions and depreciation. I note that respondents' counsel does not argue that his clients cannot afford to do the renovations to the tune of $60,000. He simply asserts that spending such money would be futile and "throwing money down the drain" given Famous Players' opening in 2000 or 2001.
89The above finding is predicated on two points: first, that the renovations would cost approximately $60,000; and secondly, that the present profitability of Film Factory would continue in the immediate future. Regarding the first point, given my findings regarding the Report, I do not know if the respondents could afford to make renovations significantly greater than $60,000.
90Regarding the second point of the continued financial viability of Film Factory in the immediate future, they submit that it is a virtual certainty that it will not be the case. Famous Players will open its sixteen-screen multiplex in Newmarket in 2000 or 2001 and that will put Film Factory out of business. Mrs. Tarrant testifies about the similar experience in Pickering with her movie theatre and Famous Players' complex. The Commission argues that while it is likely that Famous Players' Newmarket complex will open soon, the effect on Film Factory is less predictable.
91Mrs. Tarrant testifies about the Pickering experience. She is the majority owner in the company that owns a nine-screen movie theatre in Pickering called Movieplex9. Famous Players in Pickering reopened an eight-screen theatre in March of 1998. In the previous year, Mrs. Tarrant's Movieplex9 had ticket sales of approximately $1.5 million. After Famous Players 8 opened and Movieplex9 was denied first product and reduced to second run films, its sales dropped by 75 percent.
92Mrs. Tarrant testifies:
In Pickering, we are operating at a loss ... This is why we're so concerned with a big theatre opening up. Famous Players gets any product [movie] it wants. We will have to close. There will be too much competition in Newmarket with Glenway 5 and the 16-screen Silver City ... Like in Pickering, we will get only second run product [no new releases].
Mrs. Tarrant says under oath that the only reason she hasn't closed the unprofitable Movieplex9 was because it has tenants who pay rent and she made a complaint to the federal Competition Bureau and hopes that the complaint will render a fairer playing field in Pickering.
93The respondents tender as Exhibit 19 an industry supplied breakdown of ticket sales for movie theatres in different cities in Ontario. Mrs. Tarrant produced a comparison (part of Exhibit 19) which shows that for a report date of November 21, 1999, based on a two-day weekend, Famous Players' Pickering 8 theatre had total ticket sales of $34,093 compared to the three-day weekend sales of Movieplex 9 of $4,085.
94Based on the evidence, I find that Famous Players' sixteen-screen complex will be opening in Newmarket in the spring of 2001 at the latest and that its effect will be negative on the profitability of Film Factory. From the evidence before me, I cannot possibly know the exact effect that the Famous Players' opening will have on Film Factory — whether it puts Film Factory out of business, etc.
95Notwithstanding the above finding, I believe the appropriate remedy includes a renovation order that will allow for the dignified attendance of those in wheelchairs at Film Factory. Such an order, per s. 41(1)(a) of the Code, would "achieve compliance with this Act , both in respect of the complaint and in respect of future practices".
96I am inclined to make a significant renovation order on a staggered or phased-in basis. A phased-in approach is recognized by the Commission in its Guidelines for Assessing Accommodation Requirements for Persons with Disabilities (Exhibit 12). At p. 22, it reads:
Some accommodations will benefit large numbers of persons with disabilities, yet the cost may prevent them from being accomplished. One approach which may reduce the hardship is to spread the cost over several years by phasing in the accommodation gradually. For example, a commuter railroad might be required to make accessible a certain number of stations per year.
97The respondents shall renovate Film Factory to make it wheelchair accessible up to a maximum of $60,000 over a three-year period from the date of this decision. The respondents are to formulate a plan and timetable of implementation (including cost estimates) based upon an expert's report (presumably from an architect). The $60,000 maximum is based on work that is feasible from an architectural/engineering perspective and satisfies statutory/regulatory requirements (including building codes and by-laws). The expert's report should also consider any issues that arise from doing the work on a phased-in basis. The respondents are to get the approval of the other parties of said plan and timetable. If agreement has not been reached within six months from the date of this decision, the parties may bring the matter back before me to render a decision on implementation.
98There are some changes which may be made quickly and which I shall order. As Mrs. Tarrant states in her evidence, removal of chairs to allow for wheelchair patrons is a good idea. Film Factory shall remove seats and provide designated wheelchair spaces (the number of which shall be in accordance with the formula in the Ontario Building Code) in each of its six theatres within one month of the date of this decision. If there are any regulatory or other restrictions (other than cost) in doing so, the respondents are to advise the Board and the parties before the expiry of one month as set out above.
Liability of Tarrant Enterprises
99Commission counsel argues that any award should be as against both respondents. She submits that the evidence shows that there was no demarcation between the two corporations, and that it was only for accounting purposes that separate corporations were created. Respondents' counsel argues that they are separate legal entities and should be treated as such. He further argues that in the event that I find Film Factory violated the Code, that such a violation does not extend to Tarrant Enterprises.
100I find that my order should be as against both respondents jointly and severally. The evidence clearly indicates that there is no clear line or distinction drawn between the two corporations in their organization and operations, other than they are separate corporations under the Business Corporations Act, R.S.O. 1990, c. B.16. Mrs. Tarrant is the sole shareholder, director and officer of both companies. Her "right hand" person, Wendy Lewis, works for both. In evidence, Mrs. Tarrant says that she created a separate company on the advice of her lawyer. Both Mrs. Tarrant and Ms. Lewis testify that money was moved around the four companies: the two respondents and the two "Tarken" companies. The respondent companies are "associated" for income tax purposes. Indeed, the letterhead used in correspondence in this matter (Exhibit 37) reads "From the Desk of Wendy Lewis" and "Tarrant Enterprises Limited" and not Film Factory. Mrs. Tarrant's letter of May 3, 1995 (Exhibit 9) is on letterhead which reads at the top "Tarrant Enterprises Limited". Indeed, on the left column, it lists her businesses including "Film Factory 6". Further, the lack of a written lease between the two respondents indicates an informality and lack of demarcation between the two companies. In these particular circumstances, Tarrant Enterprises, as the landlord, is responsible for discriminatory practices on its property as it has been fully aware of the situation and is run by the same operating mind as Film Factory — Mrs. Tarrant.
ORDER
101I order the following:
Film Factory is to pay $3,000 to David Brock as damages for the loss arising out of the infringement of his rights under the Code.
The respondents shall renovate Film Factory to make it wheelchair accessible up to a maximum of $60,000 over a three-year period from the date of this decision. The respondents are to formulate a plan and timetable of implementation (including cost estimates) based upon an expert's report (presumably from an architect). The $60,000 maximum is based on work that is feasible from an architectural/engineering perspective and satisfies statutory/regulatory requirements (including building codes and by-laws). The expert's report should also consider any issues that arise from doing the work on a phased-in basis. The respondents are to get the approval of the other parties of said plan and timetable. If agreement has not been reached within six months from the date of this decision, the parties may bring the matter back before me to render a decision on implementation.
Notwithstanding § 2 above, Film Factory shall remove seats and provide designated wheelchair spaces (the number of which shall be in accordance with the formula in the Ontario Building Code) in each of its six theatres within one month of the date of this decision. If there are any regulatory or other restrictions (other than cost) in doing so, the respondents are to advise the Board and the parties before the expiry of one month as set out above.
Both respondents are jointly and severally liable.
I remain seized of this matter to the earlier of the agreement of the parties on the plan and timetable for renovations or the rendering of a decision on implementation, in accordance with paragraph two above.