A P P E A R A N C E S

Ontario Human Rights Commission ) Naomi Overend, Counsel

Marilyn Chapman, Complainant ) Appeared on day one only

Famous Players Inc., Respondent ) Allison Taylor and Wendy Kady, Counsel

INTRODUCTION

1On September 10, 2001, the then Board of Inquiry (now called the Human Rights Tribunal of Ontario as a result of a legislative amendment: S.O. 2002, c. 18, sched. C) ruled that Famous Players Inc. had discriminated against Barbara Turnbull, Marilyn Chapman, Domenic Fragale, Ing Wong-Ward and Steven Macaulay in the provision of services based on the ground of handicap (now disability): reported at [2001] O.H.R.B.I.D. No. 20 (“Board’s Decision”). The Board’s Decision included an Order of remedies.

2The main issues were about the lack of wheelchair accessibility in some of Famous Players’ theatres, its policy of excluding wheelchair users from its inaccessible theatres, and the alleged treatment of the Complainants by Famous Players’ management and staff. All of the Complainants use wheelchairs due to mobility impairments. The five complaints involved six incidents at nine inaccessible Famous Players theatres. At the time of the hearing (“first phase of the hearing”), only four theatres remained under the operation of Famous Players – Uptown, Backstage, Plaza and Eglinton. At the present time, only the Uptown Theatre remains open and for a limited period of time (four months). Instead of making the Uptown wheelchair-accessible within the two-year period that the Board had ordered, Famous Players chose instead to close it within that time period. The Uptown – or more specifically, whether the non-admittance policy or “the ban” for persons using wheelchairs and scooters, and whether to revoke or lift it in the remaining four months of the life of the Uptown – is the focus of the second and final phase of the hearing dealing with this remedial question.

ISSUES

3The Tribunal deals with the following issues:

(1) Is it safe to revoke Famous Players’ non-admittance policy at the Uptown until its closure in September 2003?

(2) Is the Tribunal functus officio on the issue of ordering interim renovations to be done to the Uptown in the next four months? If not, should the Tribunal order Famous Players to do interim renovations?

(3) Is the Tribunal functus officio on the issue of varying its previous Order of September 10, 2001 (“Board’s Order”) by extending the date for compliance? If not, should the Tribunal grant the extension?

DECISION

4The non-admittance policy or ban, vis-à-vis persons using manual wheelchairs, is revoked subject to the terms and conditions set out herein. Famous Player’s request to have the Board’s Order varied is denied.

BACKGROUND: THE BOARD’S DECISION

5The Board ordered damages for each of the Complainants and for Famous Players to review its training program for employees. At para. 282, it also ordered:

(3) Famous Players shall make the theatres listed below wheelchair-accessible on the following phased-in basis:

(a) the Backstage Theatre – within one year of the date of this Decision and Order;

(b) the Eglinton Theatre – within two years of the date of this Decision and Order; and

(5) Famous Players shall within three months from the date of this Decision and Order file an implementation plan with the Board and provide a copy to the parties dealing with the actual timetable and content of the renovations for the three theatres. Famous Players shall consult with the other parties when finalizing the specific plans for its renovations of the above theatres. As part of its implementation plan to be filed with the Board in three months, Famous Players shall also consider, through its expert(s), the issue of whether it is safe to lift the ban during the renovation period, and if so, under what conditions, if any. If there is no agreement on the implementation issues and the ban, or if the Board is not agreeable to the plan, the parties will reconvene before the Board.

(6) Any film being shown exclusively at those three inaccessible theatres shall be made available to a patron using a wheelchair, upon that person’s request of Famous Players, at an accessible theatre to be agreed to by that person and Famous Players. This applies to the post-renovation period regarding the second level Backstage auditorium.

(9) The Board remains seized of this matter.

[Emphasis added.]

6In that three-month period, the lease of the Eglinton ended and that theatre was closed. Famous Players closed the Backstage. According to the written submissions of its counsel, they were closed for economic reasons:

As noted in the Decision, each of the three (3) theatres is of a considerable age. Each is built in a style which is no longer popular with the theatre-going public…Older buildings also have significant maintenance and repair costs, which become more burdensome as the building ages. As a result, the eventual closure of these theatres has been inevitable.

7Only the Uptown remains open. Famous Players considered several options and decided to close it in September 2003. Its counsel wrote at p. 3 of the December 6, 2001 submissions, “The Uptown theatre itself has declined in popularity over the years relative to competing theatres and its profitability has declined significantly. The theatre actually lost money in 2000.” In phase one of the hearing, Roger Harris, Senior Executive Vice-President of Famous Players, testified about closure of older theatres by Famous Players: “They were obsolete in today’s business practices”: see para. 90 of the Board’s Decision. Also, the Board noted that Famous Players did not argue undue hardship based on cost as a defence. It did not want to produce any of its financial statements, including the profit/loss statements for the Uptown.

8The Commission acknowledges that Famous Players has complied with the Board’s Order. What remained outstanding was the issue of its non-admittance policy pending closure of the Uptown in September 2003. As can be seen above, the Board ordered a phased-in renovation of the Uptown over a two-year period. The lack of accessible facilities for persons using wheelchairs at the Uptown would have come to an end by September 10, 2003 at the latest. Instead, Famous Players chose, as was its right, to comply with the Board’s Order (i.e., no longer denying equal treatment in the provision of services to persons in wheelchairs) by closing down the Uptown, instead of renovating it.

9The Board, in its Order, addressed the issue about what to do, in the interim, with the non-admittance policy, pending completion of the renovations. In other words, should it lift the ban and, if so, under what conditions, if any. Whatever was decided, at the end of two years, the Uptown would be wheelchair-accessible and the non-admittance policy would be a moot issue. That somewhat changed when Famous Players decided to close the Uptown. The safety issues remained: what to do in the interim until its closure in September 2003. At that point, the issue of the non-admittance policy would be moot, not because there would be a renovated wheelchair-accessible theatre in its place, but because there would no longer be an Uptown theatre. In essence, Famous Players would no longer be violating the Complainants’ rights as a result of withdrawing the service – the Uptown.

Excerpts of the Board’s Decision Dealing with the Safety Issues

10In its Decision, the Board made it quite clear that it would have revoked the non-admittance policy, but for the safety concerns raised by one of Famous Players’ witnesses, Pamela Cluff. What follows are excerpts from the Board’s Decision at paras. 270-275 dealing with the non-admittance policy:

The most troubling aspect of the remedial portion to the Board has been what to do with the ban until the renovations making each of the three theatres wheelchair-accessible are completed. The Board heard evidence from the Complainants about how hurtful and damaging the ban is to them and people with disabilities in general. The Board would have lifted the ban had it not been concerned about the compelling safety issues raised by Famous Players’ expert, Pamela Cluff, who is an architect, disability design consultant and former Ontario Fire Code Commission Vice-Chair.

While concerned about the issue of whether persons using wheelchairs going on an escalator with a companion/attendant’s assistance or being carried up or down stairs per se were safe, the Board is not satisfied that it constituted a safety risk sufficient to justify an extraordinary policy like an outright ban. However, the Board feels differently about the issue of safety in case of a fire in the auditoria or theatre proper.

Ms Cluff’s evidence pertaining to the current physical set up of the three theatres in question and the concerns in the case of a fire and in the context of the Board’s View of the theatres, make the Board concerned about lifting the ban. For example, in the Uptown, there is no safe area of “refuge” that is heat resistant and properly ventilated in the case of a fire. There would be no means of exit for persons in wheelchairs except for them to be carried out. The Board accepts the evidence that wheelchairs blocking aisles, as there are no designated handicapped spaces, could heighten the risk to safety to patrons escaping a fire. The Board accepts Ms Cluff’s evidence and also takes “judicial notice” that in emergencies, people scramble for their lives and do not act in an orderly manner.

The Board is satisfied that, given the current state of the theatres in question, safety to the patrons, including those using wheelchairs, and the employees, is a genuine and real concern. What the Board is unsure of is whether the risk is of such an unacceptable level and nature as to justify the blanket ban in the interim until the renovations are completed. It is unsure because it has not been presented with sufficient evidence by the parties (e.g., from the Ontario Fire Marshal’s Office) on which to make a finding regarding the appropriateness of lifting the ban.

To put it succinctly, the Board’s emergency safety concerns are not enough to rule that it would maintain the ban until the renovations are completed but sufficient enough that it would not immediately lift it for safety reasons absent further evidence. Accordingly, as part of its implementation plan to be filed with the Board and the parties in three months, the Board directs Famous Players to consider, through its expert(s), the issue of whether it is safe to lift the ban during the renovation period, and if so, under what conditions, if any (e.g., partial lift of the ban, limiting number of persons using wheelchairs per showing in each auditorium). This issue too should form part of the consultation process with the parties. If there is no agreement on the implementation issues and the ban, or if the Board is not agreeable to the plan, the parties will reconvene before the Board.

Upon receiving further and sufficiently cogent evidence and being able to find, on a balance of probabilities, that the safety risk is reasonable and acceptable, the Board will lift the ban, with or without conditions, to the extent that it is reasonably safe to do so, pending renovations.

Revoking the Non-Admittance Policy: Liability vs. Remedy

11At para. 224 of the Decision, the Board wrote:

However, the Board finds that this outright blanket ban was unjustified as the theatres in question could have been made wheelchair-accessible, thus making the imposition of a ban unnecessary and moot. Accordingly, the Respondent’s undue hardship based on health and safety argument fails.

Even if Famous Players had adduced cogent objective evidence to satisfy the Board that it had, on a balance of probabilities, valid justification to impose the ban on account of safety reasons, it still would have failed to meet the defence. Once Famous Players proved that the theatres could have been made wheelchair-accessible (e.g., Ms Cluff’s reports and viva voce evidence), its defence could not succeed. It is only if it showed that making the theatres wheelchair-accessible was an undue hardship and that for valid safety reasons, a ban had to be imposed, that its duty to accommodate defence would have been successful.

12There has been a difference in the conceptual framework around the issue of revoking the non-admittance policy: is it a question of liability or remedy? The Commission argues that the applicable test is the section 17 undue hardship test. Commission counsel relies on the Supreme Court of Canada decisions in British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U. (“Meiorin”), 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 and British Columbia (Supt. of Motor Vehicles) v. British Columbia (Council of Human Rights)(“Grismer”), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, saying Famous Players has failed to meet the undue hardship based on health and safety test using the principles in those cases. Famous Players asserts that applying such a test would amount to relitigating phase one of the hearing: the liability portion. Its counsel says that that fight has been fought and lost by Famous Players. The second phase of the hearing is dealing simply with the factual issue of whether it is safe to lift the ban in the interim, until the Uptown closes in four months.

13The Tribunal is of the view that the question of whether to lift the ban is one of remedy, not of liability. Accordingly, the section 17 defence of accommodation to the point of undue hardship is not applicable. That defence was asserted by Famous Players in phase one of the hearing. It lost that argument. The Board’s Decision dealt with all liability issues. It only carved out implementation issues (i.e., “the actual timetable and content of the renovations for the three theatres”) and the remedial issue of what to do with the non-admittance policy. It was no longer seized with issues of liability. The second phase and these Reasons for Decision deal with whether it is reasonably safe to lift the ban in the remaining four months of the Uptown’s life.

Remedial Powers in the Code

14Subsection 41(1) of the Code empowers the Tribunal with broad remedial authority. The remedial powers in section 41 are expansive in what may be ordered. The section also gives the Tribunal a discretion to award or not to award – “the Tribunal may, by order,…” [Emphasis added.] At para. 235 of its Decision, the Board wrote:

The Board notes that the terms “duty to accommodate” and “undue hardship” are nowhere to be found in section 41. Significantly, the term “undue hardship” was removed in the 1986 amendments (in force on April 18, 1988) from the remedial section (40(2) and (3)) and moved to the liability section, dealing with defences (16(1a) and (1b); renumbered 17(2) and (3) in 1990). The Legislature could have prescribed a “short of undue hardship” test in the remedial section if it so wished. It did not do so. Accordingly, effective April 18, 1988, the test of duty to accommodate to the point of undue hardship was only prescribed as a defence in the liability portion of a hearing. In the remedial stage, the Board may (it is discretionary), after finding a complainant’s right has been infringed, order specific measures and damages per section 41(1). The test in the remedial stage of the hearing is that of reasonableness. This is consistent with the Board’s overarching power to order restitution, an equitable remedy. As found in Black’s Law Dictionary, 6^th ed., “The term “equity” denotes the spirit and habit of fairness, justness, and right dealing…”

15The Tribunal is not suggesting that “undue hardship” has no impact on the remedial sections of the Code. For example, the Tribunal could not order a remedy that amounted to undue hardship on a respondent. But it may, in exercising its discretion under the subsection, order remedies that fall short of undue hardship on a respondent. Clause 41(1)(b) deals with the restitutive part of the remedial power. The test in clause 41(1)(a) revolves around making reasonable remedies to achieve compliance with the Code, both with regards to the actual complainants involved and for future practices. Note that it does not give a timeframe “to achieve compliance with this Act, both in respect of the complaint and in respect of future practices”. There is nothing to suggest that compliance must be immediate or that a phased-in schedule for compliance or “compliance by installments” is not permissible. It is not uncommon for the Tribunal or its predecessor Board to give a party some time to put a remedy in place: see the Board’s decisions dealing with renovations of facilities in Brock (Litigation Guardian of) v. Tarrant Film Factory Ltd., [2000] O.H.R.B.I.D. No. 5 and Anderson v. YMCA of Barrie, [2000] O.H.R.B.I.D. No. 19. Obviously, the sooner a discriminatory practice is eliminated, the better, both for the parties and the public at large.

ORDERING RENOVATIONS PENDING CLOSURE: FUNCTUS OFFICIO

16During the course of the second phase of the hearing, the Commission raised the issue of ordering interim renovations, pending the closure of the Uptown in September 2003. The Commission argued that the renovations necessary to make the Uptown “safe” would not be that expensive and that it wanted to call architect and barrier-free designer Robert Topping to speak to this issue. Famous Players objected. Its counsel submitted that the Tribunal was functus officio on the issue of ordering renovations. Further, Famous Players’ counsel also noted that this was not raised in the Pre-Hearing Conference by Commission counsel.

17The Tribunal ruled that it was functus officio on this issue. It had no jurisdiction to order interim renovations at this stage. The Board’s Decision and Order dealt with this issue of making the Uptown wheelchair-accessible through renovations within two years. Famous Players chose to close the Uptown, instead of renovating it. The sole question remaining is whether it is safe to revoke the non-admittance policy, in the context of the “as is” condition of the Uptown. The Tribunal had no jurisdiction to revisit the issue of renovations.

18At para. 274 of the Board’s Decision, it stated:

Accordingly, as part of its implementation plan to be filed with the Board and the parties in three months, the Board directs Famous Players to consider, through its expert(s), the issue of whether it is safe to lift the ban during the renovation period, and if so, under what conditions, if any (e.g., partial lift of the ban, limiting number of persons using wheelchairs per showing in each auditorium). This issue too should form part of the consultation process with the parties. If there is no agreement on the implementation issues and the ban, or if the Board is not agreeable to the plan, the parties will reconvene before the Board.

The examples of “conditions” listed above did not include structural changes and other interim renovations needed to ensure a reasonable level of safety in which to revoke the policy. Once Famous Players decided not to renovate within those two years as ordered, which was its right, the question of renovations was finished.

19The Supreme Court of Canada dealt with this issue extensively in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848. Sopinka J., writing for the majority, stated at 861:

Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction, or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Limited v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186.

These two exceptions were if there had been an inadvertent error in drawing up the judgment or an error in “expressing the manifest intention of the court”.

20The doctrine of functus officio arose before the Board in McKinnon v. Ontario (Ministry of Correctional Services). In 1998, Professor Hubbard found the Ministry and certain of its employees liable for the infringement of the rights of Mr. McKinnon, a correctional services worker of native ancestry. The Board also found a poisoned work environment to exist at the Metro East Detention Centre. It ordered extensive remedies in its 176-page Decision: [1998] O.H.R.B.I.D. No. 10. On March 2, 1999, eleven months after his Decision, the Complainant wrote in a March 2, 1999 letter that the Ministry had not complied with remedies ordered. He asked the Board to reconvene. In his Decision of May 7, 1999, [1999] O.H.R.B.I.D. No. 3, Professor Hubbard held that he had jurisdiction to hear the allegations of continued discrimination and/or reprisals related to the implementation of his 1998 Order. Professor Hubbard wrote at para. 16:

But if his allegations arise from the still warm embers of his earlier complaints and relate to possible failures to implement orders made regarding matters of which I remain seized for purposes of clarification and adjustment as might be necessary in order “to achieve compliance with this Act, both in respect of the complaint(s) and in respect of future practices”, then I think my present jurisdiction extends to them.

[Emphasis added.]

In the instant case, the Commission’s request to order interim renovations (or for that matter, Famous Players’ request for an extension) does not relate to “possible failures to implement orders made…for purposes of clarification and adjustment.” That is so because Famous Players decided to close the Uptown within the two-year period, instead of making it wheelchair-accessible.

21The Ministry filed an application for judicial review of Professor Hubbard’s Decision. The Divisional Court dismissed it as being premature, leaving it for the Board to determine “the full scope and extent of that retained jurisdiction…”: 2001 CanLII 28415 (ON SC), [2001] O.J. No. 1016. The Court wrote at para. 10:

The case law establishes that a board of inquiry has a remedial authority of a supervisory nature to remain seized of jurisdiction “with respect to remedial issues in order to facilitate the implementation of the remedy” imposed by it: Canada (Attorney General) v. Grover (1994), 1994 CanLII 18487 (FC), 28 Admin. L.R. (2d) 231 (Fed. Ct. T.D.), at p. 249.

Professor Hubbard determined that the Ministry had failed to comply with his 1998 Orders and he issued further Orders: [2002] O.H.R.B.I.D. No. 22. The Ministry has appealed his Decision. The facts in McKinnon are distinguishable from the instant case. Here, there is nothing remaining “to facilitate the implementation of the remedy” of making the Uptown wheelchair-accessible. Famous Players has chosen to close the Uptown, instead of making it wheelchair-accessible through renovations. The only remaining issue is whether to lift the ban pending closure of the Uptown, in its “as is” condition.

22Black’s Law Dictionary (6^th ed.) defines “functus officio” as, “A task performed…Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority.” One must look at the Tribunal’s “function” or “purpose” according to its constituent statute. Section 39 of the Code directs the Tribunal to hold a hearing to determine whether a right of a complainant under the statute has been infringed, who infringed that right, and “to decide upon an appropriate order under section 41”. The Board carried out its mandate as reflected in its Decision, save and except for implementation issues (i.e., implementation of the Board’s Order to make the Uptown wheelchair-accessible within two years) and the issue of what to do with the non-admittance policy in the interim. Once Famous Players declined to renovate and instead close the Uptown within that two-year period, the only remaining “function” or “purpose” was the non-admittance policy, not from a liability perspective (that had been adjudged in the Board’s Decision), but from a remedial one. Had the Board intended to reserve the issue of ordering interim renovations in the event that Famous Players chose not to renovate but to close the theatre, the Board would have expressly said so in its Decision and Order.

In the Alternative that the Tribunal is not Functus Officio

23In the alternative, if the Tribunal is incorrect in law on this point, the result would be the same. The Tribunal would not have exercised its discretion to order interim renovations. Commission counsel argued that Mr. Topping’s proposed evidence would have shown that “inexpensive renovations” could have been made to the Uptown to make it safer. Given the structural reality of this 80-year old building, “inexpensive renovations” to the Uptown to make it safer are an oxymoron. That is so because such renovations would have triggered compliance with the Ontario Building Code, O. Reg. 403/97 as amended (“Building Code”). The Tribunal does not dispute the general proposition that the more fire and life safety features you incorporate in a building, the safer it will be.

24At para. 217 of the Board’s Decision, it wrote:

The Board finds Ms Cluff’s viva voce evidence and her reports (Exhibits 70 and 71) to be very credible. The Board accepts her reports as the basis for making the three theatres (the fourth one, the Plaza, is no longer in operation) in those reports wheelchair-accessible,…

It is interesting to note that in April 2000 Ms Cluff estimated the cost of making the Uptown wheelchair-accessible and in compliance with the Building Code and the Fire Code, O. Reg. 388/97, as amended, was approximately $585,000.00. Her revised estimate for the Uptown in Exhibit 74 was $555,100.00. I accept her evidence that the cost of supplies and labour has gone up since 2000.

25The Tribunal finds that the Uptown would not need to be renovated to the exact tune of Ms Cluff’s recommendations to make the theatre safe enough in order to lift the ban in the interim pending closure in September 2003. However, the Tribunal also finds that some of the renovations to improve the safety of the Uptown, if done, would trigger further substantial (and costly) renovations contained in Ms Cluff’s report by virtue of ousting the “grandfather” provisions of the Building Code. In reviewing the submissions of Mr. Topping’s proposed evidence concerning interim renovations, the Tribunal concludes that they would have triggered compliance with the Building Code and ousted the “grandfather” provisions.

26To order Famous Players to make such costly interim renovations pending closure in September 2003 would be inappropriate, unreasonable and an imprudent use of funds. The Tribunal acknowledges that it rejected Famous Players’ “improvident use of money” argument in the Board’s Decision. That was with respect to the section 17 defence of undue hardship based on cost. In the section 41 remedial stage, it is a different story. The cost and length of time until the infringement will be eliminated (i.e., closure of the Uptown in four months) are relevant considerations to the Tribunal when exercising its discretionary powers under section 41 of the Code.

27The issue of ordering interim renovations is also moot. From a practical, common-sense perspective, even if the Tribunal had ordered interim renovations, the Uptown likely would have closed before a building permit application would have been filed and approved by the City of Toronto, and the actual renovations completed. Furthermore, Famous Players is no longer the owner of the Uptown. The property was sold to an arm’s-length purchaser on May 30, 2002. Famous Players is now a tenant until the lease ends on September 30, 2003. The then Board heard evidence that the tenant would need the approval of the landlord to apply for a building permit to do renovations. If the Tribunal was inclined to order interim renovations, it would have needed to give notice to the landlord.

EXTENSION OF CLOSING DATE BY THREE WEEKS: FUNCTUS OFFICIO

28On the last day of the hearing during legal argument, Famous Players’ counsel requested that the Board vary its Order to allow Famous Players to keep the Uptown open until September 30, 2003, when its lease expires. As indicated earlier, the Board had ordered Famous Players to make the Uptown wheelchair-accessible within two years of the September 10, 2001 Order. Famous Players decided to close the theatre. The request amounts to a difference of three weeks.

29Ostensibly, the reason for the extension request is that the September 10, 2003 deadline occurs during the Toronto International Film Festival, which uses the Uptown for premieres, galas and movie showings. Counsel says the Board is not functus officio as this deals with the issue of the ban, and not about making the Uptown wheelchair-accessible (on which the Board is functus). Indeed, counsel says it may be considered as a “new Order” in light of the closure, not as varying the Board’s Order. In any event, she says that three weeks “doesn’t make a big difference.”

30Commission counsel opposed this last minute request by Famous Players. It was like throwing oil on fire, almost extracting a windfall for breaking the law. Counsel argued that, if the Board is functus on the issue of ordering interim renovations, then surely it is also functus on the question of varying this Order.

31The Tribunal finds that it is functus officio on this issue too, based on the reasoning indicated in the section dealing with interim renovations and functus officio. The Board’s Order clearly provided a timeframe for ending the unequal treatment of persons using wheelchairs by virtue of the inaccessible Uptown. A maximum timeframe of two years was ordered.

In the Alternative that the Tribunal is not Functus Officio

32In essence, Famous Players wants a further three weeks, beyond the two years ordered, to operate an inaccessible theatre. Famous Players had ample time, from the date of the Board’s Order, to make plans concerning the closure of the Uptown. Granting such an extension would amount to a windfall to Famous Players. Accordingly, even if the Tribunal was not functus, it would not have granted the three-week extension.

LIST OF WITNESSES

33The following people gave evidence in the second phase of the hearing:

For Famous Players:

(1) Captain David Craig: Toronto Fire Services; public official subpoenaed. He was qualified as an expert on the issues of fire safety, the progress of fire and evacuation;

(2) Pamela Cluff: architect and barrier-free design consultant. She was qualified to give expert opinion evidence on issues relating to fire safety and egress for persons with disabilities;

(3) David Syrett: Fire Protection and Building Code architectural technologist and consultant. He was qualified as an expert on the Building Code and Fire Code (part 9: retrofit).

For the Commission:

(4) Alison Wilson: Information Data and Statistical Services, Fire Marshal’s Office;

(5) Robert Topping: architect and barrier-free design consultant. He was qualified to give expert opinion evidence on matters of architecture and barrier-free design; and

(6) Chief Jack Collins: Toronto Fire Services. He briefly gave evidence regarding fire safety plans, including an owner’s responsibility under said plans, and other matters involving evacuations.

34During this second phase of the hearing, the then Board also took a second View of

the Uptown with the parties. The Board also had an empty wheelchair on hand in order to assist with such issues as aisle and exit space. The Tribunal in these Reasons for Decision has also considered evidence adduced in the first phase of the hearing and the Board’s Decision.

THE ROLE OF EXPERT EVIDENCE

35The Tribunal heard from several expert witnesses in the second phase of the hearing. It has relied on much of their evidence in making findings and arriving at a disposition of the issues before it.

36The use of expert opinion evidence is commonplace in matters before the courts and administrative tribunals, including this one. The use of such evidence is an exception to the bar against opinion evidence. It is precisely his/her opinion that the trier seeks from the expert, because of that person’ expertise, which the trier does not possess. Dickson J. (as he then was) described the role of the expert in R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24 at 42:

With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert’s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. “An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary: [R. v.] Turner [cite given].

37In the leading case on expert evidence of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9., the Supreme Court of Canada articulates the general criteria for the admissibility of expert opinion evidence. The criteria are:

(1) the evidence must be relevant to some issue in the case;

(2) the evidence needs to be necessary to assist the trier of fact;

(3) the evidence does not violate an exclusionary rule of evidence; and

(4) the witness is a properly qualified expert.

38The issue of the independence of the witness and his/her evidence is a matter that goes to weight, not admissibility of the evidence. The Tribunal has scrutinized the proffered expert evidence and finds that all of the expert witnesses before it satisfied the four criteria above. That does not mean that the Tribunal has accepted every bit of expert evidence of the witnesses. The Tribunal is cognizant that the role of the expert is not to usurp the function of the trier or to replace it. The Tribunal may accept or reject all or part of an expert’s opinion evidence (even where uncontradicted), including that which relates to the ultimate issue before the trier. In The Law of Evidence in Canada, J. Sopinka, S.N. Lederman and A.W. Bryant (2^nd ed. 1999 Butterworths), the authors write at para. 12.70:

The question arises whether a witness may testify on the very point or issue the court has to decide. There is no longer an absolute rule barring such testimony but the closer the testimony gets to the ultimate issue the fact finder has to decide, the more inclined the court is to reject it.

As will be seen later in these Reasons, the Tribunal accepts much of the expert evidence of Captain Craig and Ms Cluff, but rejects their opinion on the ultimate issue: whether it is safe to revoke the non-admittance policy in the current Uptown?

39In R. v. Lavallée, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, Wilson J. interpreted the Court’s decision in Abbey as establishing that before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. In other words, the factual premises or foundation upon which the expert’s opinion is based must be sound.

IS IT SAFE TO REVOKE THE NON-ADMITTANCE POLICY?

Introduction

40Earlier in these Reasons for Decision, the Tribunal quoted from the Board’s Decision dealing with this remaining remedial issue of whether to revoke the non-admittance policy. The Tribunal is looking at this issue from the perspective of whether it is safe to lift the ban pending the closure of the Uptown in four months. It need not be absolutely safe but safe enough. In Grismer, the Supreme Court of Canada was dealing with a case where Mr. Grismer was denied a licence to drive an automobile. The Superintendent of Motor Vehicles found, without individual testing, that Mr. Grismer lacked a sufficient level of functional ability to drive as a result of the impairment of his vision caused by a stroke. The issue of “absolute safety” was argued in the context of a defence of undue hardship based on health and safety. The Court clearly rejected a threshold of absolute safety. What is required is reasonable safety. At para. 25, the Court wrote:

The Superintendent’s goal in this case was to maintain highway safety. But what kind of safety? What degree of risk would be tolerated. Where did the Superintendent draw the line between the need to maintain highway safety and the desirability of permitting a broad range of people to drive? The possibilities range from absolute safety, in which case few if any mortals would be allowed to drive, to a total lack of concern for safety, in which case everyone, regardless of their lack of ability, would be allowed to drive. Between these two extremes lies the more moderate view that reasonable safety suffices. The question is: where on this spectrum did the Superintendent set the bar?

Where one draws that line is subjective by nature. There is no precise formula. However, the Tribunal is guided by the expert opinion evidence on safety issues of Captain Craig and Ms Cluff as well as the video of the Uptown and the Views of the theatre.

41As indicated earlier, as a result of its ruling on the question of being functus officio with regards to ordering interim renovations, the Tribunal is determining the issue of safety and whether to revoke the policy in the context of the “as is” condition of the Uptown. The Tribunal also indicated that it would be looking at issues of egress and evacuation only in the context of fire or other emergencies. It would not be revisiting the question of access (i.e., entering it) to the theatre and the respective auditoria. That is not to suggest that the Tribunal does not have concerns about persons in wheelchairs accessing the Uptown using the steep and narrow escalator: see para. 271 of the Board’s Decision. The Tribunal notes that persons using wheelchairs can more easily access Cinemas 2 and 3 from the back street exits with reasonable safety than from the main entrance via the escalator.

Safety Issues: Type and Nature of Emergencies

42The Tribunal examined the safety issue with respect to emergency situations. As Captain Craig testified, fire can be caused intentionally (e.g., arson, terrorism) or by accident, with the same devastating results. He stated that someone could start a fire in a theatre’s washroom from smoking a cigarette and not putting it out properly. Arson still occurs: “some people like to start a fire to see the fire department show up in their gear. They get excited by the lights, sirens and ensuing panic.” Someone could set off an explosive. Mice could eat through old wiring which would cause a fire. You could have a fire started in the concession stand. There are many sources of ignition at the Uptown. In an old building like the Uptown, according to Captain Craig, the most probably source of ignition would be electrical: “the sheer age [of the Uptown] represents a risk”. As well, the fire can happen anywhere in the Uptown. Captain Craig averred, “It’s all a numbers game. It can happen anywhere and anytime.”

Threat of Fire and Risks

43The Tribunal heard expert evidence about the dangers of fire and the risks inherent in evacuations. Captain Craig testified of the types of fires he has seen in his over 30 years experience as a firefighter. He talked about a fully engaged fire and a “flash-over”. A flash-over occurs when a ball of fire spreads from one end of the theatre to the other in a matter of seconds and “engulfs the whole room. It is a firefighter’s worst nightmare.” A flash-over is like a mini-explosion. The Captain stated, “It is instantaneous, like an explosion.” The results can be devastating. In a matter of four minutes, the Uptown could be completely in flames. As both Captain Craig and Pamela Cluff, architect and former Fire Code Commissioner attested, you plan “for the worst-case scenario, not the best case.” They point out that it only takes one fire to kill or injure people. The Tribunal is addressing the worst-case scenario where injury and death can occur to patrons and employees of the Uptown (e.g., a serious fire breaks out and a “flash-over” occurs in the 900-person packed Cinema 1 during a Film Festival showing, with people scrambling for their lives). The Tribunal heard evidence from Alison Wilson, the Co-ordinator of Information Data and Statistical Services at the Office of the Fire Marshal. She testified that there have been very few fires (and one fatality) in theatres in Ontario from 1983-99. While this is good news, her evidence bolstered the point of Captain Craig that, “Fires can occur anywhere at anytime. And it only takes one!” The Tribunal has kept that point in mind in its deliberations and writing of these Reasons.

44The Captain testified that the severity of a fire, in terms of loss of life and injury to people and property damage, depends on many factors. Referable to a fire at the Uptown, some of the factors would be: age, design and layout of the building, nature of the materials in the theatre (e.g., upholstery, carpeting, curtains, seating), fire protections available (e.g., exiting, staircases, sprinkler, fire alarms), number of patrons present, location of fire (inside or outside), and source of ignition.

45Applying the factors to the Uptown, Captain Craig highlighted some of the dangers. He stated that given the nature of the building and the auditoria with padded seats, a high fire load and carpeting, and the layout of the auditoria, there would be an abundant supply of oxygen to fuel the fire. “It is a recipe for disaster in this building. The fire could spread rapidly, perhaps faster than could allow for anyone to get out safely. The first couple minutes are crucial to get the fire under control. Beyond that, the fire would spread very rapidly in this type of building.” He described how a flash-over could occur in the auditorium. “Vapour burns, things don’t burn. It has to be heated to give off enough vapour and with the air, burst off in flames.” Given the layout of the three auditoria, Captain Craig said a “flash-over” was a greater threat in auditorium one than two and three.

“Smoke is the Killer”

46Captain Craig testified about fires in Toronto. In 2001, ten people died from fires; the year before, 20 people died. None died from burns or the flames. People died from smoke inhalation. “They don’t usually die from the fire but from the by-products of fire from upholstery, etc. It’s from inhaling carbon monoxide, cyanide and other substances.” The Captain said that he has experienced carbon monoxide poisoning himself. “It’s like an out of body experience: your memory goes and you act irrationally. It affects your judgment…It’s the combination of the lack of oxygen and inhaling poisons that kills.” He cannot recall any deaths from people escaping fires (e.g., tripping), although that does not mean it’s not a safety concern.

47Both Captain Craig and Ms Cluff testified that in fires, “smoke is the killer.” It is the inhalation of smoke that most likely will cause injury or death to people. Captain Craig said you would expect to see a lot of smoke in a fire at the Uptown, especially with the padded seats, curtains and carpeting. Looking at the floor plans of the three auditoria (Exhibit 76), the expert testified that the fire and smoke naturally want to go up and the smoke would progress into the stairways. “In the Uptown, the screen exits [with their many stairs] would fill up with smoke and put extra pressure on the other exits.” In a fire at the Uptown with lots of smoke, you wouldn’t be able to “see one foot in front of your face.” He testified that the firefighters crawl in with the hose line which helps them exiting. “Visibility is severely restricted.” And if the fire was in the auditoria, it would also be dark. The Fire Safety Plan for the Uptown indicates that there is no independent electrical generator. It is likely that the theatre would be dark and filled with smoke and fire.

Protection Against Fire

48Captain Craig and Pamela Cluff testified about various protections to reduce the risk and damage caused by fires. Ms Cluff and Mr. Syrett also testified about the Building Code requirements regarding barrier-free access and safety protocols. The Building Code prescribes requirements when building new facilities or renovating older ones. Ms Cluff testified that section 3.8 of the Building Code deals with barrier-free access design (e.g., entrances to buildings, elevators, washrooms). That section does not address issues of egress; other sections do. The Building Code is changed every five years. She averred, “It takes a while for it to catch up technological changes.” The Fire Code is supposed to be a companion document to the Building Code. The former dictates the fire safety standards, including the maintenance, inspection and testing criteria for equipment required in the Building Code (e.g., exit lights in theatre, fire alarm system must be checked). “Fire safety” deals with the building or structure while “life safety” concerns the occupants. Mr. Syrett said that the Building Code deals with the construction and design of the building. The current Building Code was passed in 1997 and a new one is under review, per the five-year cycle of Building Code revisions.

49Captain Craig testified that the Building Code and Fire Code gives us guidance. “They are not the be all and end all for life or building safety. They are the bare minimums for those things. If one builds a building that exceeds those Codes, that building is the safest. One could say that a building that complies with the Building and Fire Codes is safer than one that does not.”

50Both Captain Craig and Mr. Syrett testified the Building Code contains a “grandfather” provision. Older buildings are not held to the same standards as ones built or renovated to the current Building Code standards. Captain Craig said, “It is difficult, if not impossible, in some cases to comply with today’s building and fire codes. In the long haul, we are not going to make every building comply. It would be enormously expensive.” By undertaking certain changes or renovations to an older building, you can lose the “grandfather” provisions and trigger a requirement to comply with the higher Building Code standards. Captain Craig and Mr. Syrett said that the Uptown is required to have a fire alarm and detection system. It has a two-stage system. There is no requirement for a sprinkler system and the Uptown does not have one. There is no requirement to build a safe holding area or “area of refuge” and the Uptown does not have one.

51Ms Cluff testified that you deal with the likelihood of fire and life safety bearing in mind building and occupant safety. “The primary concern is that a fire will occur. If a fire occurs, xyz will occur. You design for that occasion as reflected in requirements for the structure, walls, ceilings, etc.” The Building Code incorporates features that increase or enhance safety – e.g., sprinklers, fire alarm system, proper exiting mechanisms. These are done to reduce the risk of loss of life and damage to property. For example, metal fire escapes like those of the Uptown are not allowed, save for the “grandfather” provisions. Most exits in modern buildings are fully enclosed and in concrete which reduces the spread of fire to adjacent buildings. Of course, the greatest concern is injury or death to people in the building.

52Mr. Syrett gave detailed testimony on the Building Code requirements dealing with fire and life safety. He stated that the Building Code requires one of the following three life safety measures “where barrier-free access is provided above or below the barrier-free entrance to the building” (Section 3.3.1.7):

(a) a fire protected elevator with a ¾ hour protected vestibule or a one hour protected corridor;

(b) the floor area must be divided into at least two fire protected zones creating a “temporary safe area of refuge”. The zones need to be “separated from each other by a 1 hr fire separation so that the travel distance from any point in one zone to a doorway leading to the other zone does not exceed 30 m and barrier-free access is provided to an exit in each zone”; or

There is a fourth item – an exterior balcony – but it only applies to residential apartment buildings. Mr. Syrett concluded that, “The Uptown does not have at least one of the above protection measures, and the auditoriums do not have a doorway at or near ground level to allow persons in wheelchairs to exit on their own.” Each of the three items increases the safety level and provides additional time for evacuation.

53Mr. Syrett reiterated that the Uptown is not required to have one of the three items above as it is protected by the “grandfather” provisions of the Building Code. They are not retroactive. He stated that if the Uptown was renovated, the Building Code would be applicable to the new construction. “There are very little renovations that would not trigger a building permit. It would have to comply with the Building Code. It is possible that some minor renovations would not oust the “grandfather” provisions and thus make you bring it up to Code grade.” He gave the example of new carpet or installation of a non-bearing wall. He testified that putting in load-bearing walls and pouring concrete to install designated cantilevered seats for persons using wheelchairs would oust the “grandfather” provisions and trigger compliance with the Building Code.

54During cross-examination, Mr. Syrett commented, “Changing the use [of the Uptown by allowing persons using wheelchairs to attend] could trigger the Code even if no renovations were done. From a strict application, I could see a building inspector requiring an upgrade.” When asked to explain this, he remarked, “The lack of a barrier-free path assumes people using wheelchairs wouldn’t be admitted…The [Building] Code and Fire Code say that if you change the use of the building for which it wasn’t originally designed, you must do upgrading…In my view, you’re doing something by now letting in people using wheelchairs in a building that was not built to perform that way.” The change could impact on life safety which could trigger other requirements of the Building Code. When pressed on this point by Commission counsel, the expert added, “In light of the fact that they were admitted before 1995, it may not trigger the Code, but if they put in seating for example, it would trigger application of the Code. It would trigger the barrier-free path of travel provisions. I still believe if you were renovating to accommodate, it would trigger it.” Mr. Syrett did acknowledge the “subjective aspect” to building permit applications, the discretion of inspectors, and the different “approaches” that individual inspectors take. Ms Cluff testified that installing a cantilevered platform and guard railing for designated wheelchair spaces “might trigger the Code”.

55The Tribunal concluded earlier that it is functus on the question of ordering renovations in the remaining four months of the Uptown’s existence. However, in the alternative, the Tribunal is satisfied that the nature and type of renovations required would surely have ousted the “grandfather” provisions of the Building Code and required Famous Players to do extensive renovations to bring the Uptown up to Building Code standards, as outlined in Ms Cluff’s Report (Exhibit 70).

56Commission counsel cross-examined Mr. Syrett on the utility of the three life safety requirements: fire elevator; fire zones; and sprinkler system. She put it to him that the fire elevator may not be usable by patrons during a fire. A fire plan may tell people not to attempt to use the elevator. The firefighters may be using it. He agreed it is possible. She then suggested that the sprinkler system may be ineffective in Cinema 1 as a life-saver because of its high ceilings (less so for Cinemas 2 and 3). She also put it to him that sprinklers do not necessarily save lives, but slow down fires. Mr. Syrett disagreed. All of these features are designed to improve safety, to “bide time” for people to escape. “Controlling a fire is life safety.” Captain Craig and Ms Cluff both testified that sprinklers are not life-savers per se, but more property-savers, and that they may not be that effective in the Uptown because of the height of the ceilings. The Tribunal finds that only one of the three safety features is required for “protection on floor areas with a barrier-free path of travel” by the Building Code but not others (e.g., safe area of refuge with independent ventilation and communications link as described in the Canadian Safety Association’s Guidelines. The purpose and effect of these safety devices are to reduce the risk of injury, death and property damage by increasing the safety level of a building. The Uptown lacks all of the ones listed above. The Uptown does not even have a level barrier-free path of travel as stipulated in the Building Code. As mentioned earlier, the Uptown is saved by the “grandfather” provisions of the Building Code.

57What does the Uptown have in terms of fire and life safety features? It has a Fire Safety Plan (last revised in 1990 which is not completely accurate: it refers to an “elevator” which never existed in the Uptown). The lack of a proper up-to-date Fire Safety Plan is the responsibility of Famous Players alone. The Uptown has fire extinguishers and a two-stage fire alarm system. It has 80-year old black metal exterior fire escapes. Both Captain Craig and Ms Cluff queried about how safe or secure they are or when they were last checked. Both acknowledged that they did not inspect them or know if they are indeed unsafe. Captain Craig commented, “Fire escapes are kind of scary at the best of times. They are open and you look down. There is a certain unwillingness to even negotiate those things. It will slow down people anyway. Metal staircases [like those at the Uptown] are inherently slower than modern staircases.”

58Undeniably, the beautiful old Vaudevillian Uptown is no modern, state-of-the art, fully accessible theatre. It is an 80-year old building that has been “grandfathered” by the Building Code. The Tribunal accepts the evidence of Captain Craig and Ms Cluff that the risk to all patrons, wheelchair-users and able-bodied, would be reduced if extensive changes (i.e., ones that met and exceeded the Building Code) were made to the Uptown. However, with respect, that is not the question here. The question here is the following: is the actual or real (not just perceived) risk acceptable vis-à-vis the Uptown in its present, “as is” condition as it relates to the issue of safety for patrons and employees? Further, is the act or measure (i.e., the ban) a proportionate response to the risk?

59In cross-examination, referring to the Uptown, Captain Craig averred, “The problem is that the building was built one way and you’re trying to make it in a way it was not meant to be.” The reality is that the Uptown was built 80 years ago at a time when barrier-free access and egress were not important considerations. Thought processes have changed since then and they are now, rightly, important considerations to society, as reflected by the Human Rights Code, the Building Code, and the Ontarians With Disabilities Act. However, you still have an 80-year old structure to contend with. The only way to truly balance the architectural reality with the modern and correct notion of accessibility and safety regarding the Uptown is to do the half a million dollar renovations recommended in Ms Cluff’s Report. As stated earlier, Famous Players has chosen instead to close the Uptown in four months.

60Captain Craig testified that the Uptown does not meet the Building Code requirements, be it for able-bodied patrons or disabled patrons. He had safety concerns about the Uptown for able-bodied patrons too. But his concerns were greater for persons in wheelchairs as it was about “degrees of safety”. However, when asked if he would counsel persons, other than those using wheelchairs, not to go to the Uptown, he answered “no”. He testified, “There is nothing to condemn the building. We wouldn’t close them down for permitting persons in wheelchairs in the Uptown.” He averred that the Toronto Fire Services can issue a “Fire Marshal’s Order if we deem it unsafe. We only do that under an immediate threat to life, something that amounts to a recipe for disaster. It needs to be an immediate threat to life as opposed to a perceived threat to life.” His evidence on this point is telling, especially his comment that, “We wouldn’t close them down for permitting persons in wheelchairs in the Uptown.” The Tribunal infers from Captain’s Craig’s evidence that the Toronto Fire Services would not consider the risk created by persons in wheelchairs attending at the Uptown as warranting action by Toronto Fire Services to close it for safety reasons. There is also no evidence that the Toronto Fire Services (or its predecessor) ever issued an inspection or work order or ever sought a judge’s order for compliance or to close the Uptown, under the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, as amended.

61The Tribunal also accepts the evidence of the experts that there are many buildings in Toronto that do not comply with the current Building Code. And people using wheelchairs do in fact enter and leave a certain number of those buildings, while others decline to do so because of their inaccessibility. The Tribunal is looking at one particular building which is closing in four months. The evidence is about the Uptown alone. This is not an inquiry into the safety of buildings in the City of Toronto, which is outside the scope of the subject-matter of the Complaints.

62The reality is that the current Building Code has provisions dealing with barrier-free path of travel and other provisions with the expectation that people using wheelchairs will access those buildings. Therefore, it factors into its safety analysis, that a certain number of persons using wheelchairs will be in the building. The level flooring, the exiting systems, all these things are arrived at with the notion that people using wheelchairs will be there. That was not the case for the Uptown when it was built 80 years ago. But not even the current Building Code professes to prescribe standards that will guarantee absolute safety. And it does not deal with issues such as how many people in wheelchairs may transfer to a regular theatre seat.

Specific Safety Concerns As A Result of the Presence of Persons Using Wheelchairs

“Everyone Gets In Except People Using Wheelchairs”

63The Tribunal will now examine the question of whether the presence of persons using wheelchairs in the Uptown exacerbates the safety concerns. In other words, if their presence makes it no less safe for all – both able-bodied; those with disabilities not using wheelchairs; and those persons using wheelchairs – then why exclude only persons using wheelchairs? It must be remembered that Famous Players’ witnesses testified in the first phase that the blanket ban applied only to persons using wheelchairs and scooters. Everyone else could attend, subject of course to Famous Players refusing to allow admittance to unruly, drunk patrons, etc. In other words, any of the following people could come in: a person on crutches; someone using a walker (which is similar in size to a manual wheelchair); an obese person; a pregnant mother with several young children or babies; an elderly person having difficulty walking; those with balance or sensory impairments. And these are just the people with potential visible mobility impairments. There are the people with invisible impairments – mobility and otherwise – that might impose a danger to themselves and others who were admitted (e.g., those with a phobia of fires, mental disorders, a coronary or heart disease, Alzheimer’s, etc.). Famous Players would not “screen” or subject to individual testing those with visible impairments. And they obviously could not screen the ones with invisible impairments. These people would be admitted. They would be allowed to assess the risk themselves. But if you were in a wheelchair - no admittance. Why is that? Famous Players’ witnesses, including Ms Cluff, said it was due to the degree of risk imposed by persons using wheelchairs. Captain Craig also spoke of “degrees of safety”. Yet on cross-examination, Ms Cluff conceded that a person using a wheelchair may pose less of a risk than some in the categories listed above (not exhaustive by any means) who would be admitted.

64The Tribunal put the question to Mr. Syrett, “If the Uptown is not safe because of the lack of the three requirements you listed, is it not unsafe to both persons using wheelchairs and ambulatory people? The expert witness responded by saying it was a matter of degree. “The danger to other patrons arises because I assume they would be in the pathway to an exit and that is the only reason why they would be a danger to other patrons.”

65Ms Cluff echoed Mr. Syrett’s testimony. She testified about the relative speed of movement of various groups of people, based on a 1982 study she did for the National Research Council of Canada entitled “Firesafety in Homes for the Elderly” (Exhibit 81). Ms Cluff stated that the average pace of movement is known. “A wheelchair takes a greater displacement.” At p. 26 of her study, Table “C” – “Horizontal Evacuation – Trip Time”, she outlined the following:

Normal adult walking 290-310 feet per minute

Elderly resident 100-120 feet per minute

Elderly resident with walker 40-60 feet per minute

Elderly resident in wheelchair 100-150 feet per minute

Wheelchair and attendant 240-260 feet per minute.

66Prima facie the first three categories of people would be admitted. The ban would only bar the last two groups, notwithstanding that an “elderly resident in wheelchair” might, according to these statistics, move faster than the “elderly resident with walker” and the “elderly resident”. Further, the “wheelchair and attendant” statistic indicates s/he would move faster than everyone except the “normal adult walking”. Ms Cluff agreed that there will be people in each of the categories who move faster or slower than their respective Table “C” range. She agreed that some ambulatory people travel at a much slower pace than a person using a wheelchair, with or without the assistance of an attendant. She indicated that physical obstacles for persons using wheelchairs (e.g., stairs) would affect the speed of movement of a person using a wheelchair, with or without the assistance of an attendant.

67The above suggests to the Tribunal that persons using wheelchairs per se may be able to travel fast enough so as not to endanger themselves or others in an evacuation. It will vary based on many factors: layout of the building in question; ability of the person using a wheelchair; number of people in the evacuation; nature of the emergency, etc. There is no one standard for a “normal adult walking” and a “wheelchair and attendant”. Indeed, within the category of wheelchair-using patrons, there will be a wide range of ability to evacuate: a person using a wheelchair with significant upper body strength versus a paraplegic person using a wheelchair with the assistance of an attendant. For that matter, the young para-Olympic athlete using a wheelchair may be able to evacuate in the Uptown far better than the elderly person using a walker or the elderly person with no mobility device but who moves extremely slowly and who becomes disoriented during the crisis. This illustrates the problem with a blanket ban which does not differentiate based on ability to evacuate. There is no room for individual assessment. This is one of the fatal flaws with such blanket bans. The Supreme Court of Canada made it quite clear in Grismer that it will hold suspect the imposition of blanket bans with no exceptions and without the possibility of individual assessment.

68As shown before, the danger that one poses to himself/herself and to others in an emergency is highly individual and unique. At p. 25 of Ms Cluff’s “A Manual of Good Practice for Firesafety in Homes for the Elderly” (referred to previously in these Reasons), the author wrote:

These physical, mental and perceptual losses can result in a reduction in the residents personal control over his environment…elderly persons are frequently unable to respond appropriately to the threat of fire, and may respond in a manner which they perceive to be correct, but which in fact may be fatal to themselves and others.

[Emphasis added.]

Notwithstanding that they may act in an emergency in a way that may be “fatal to themselves and others”, they would be admitted to the Uptown as long as they weren’t in a wheelchair. Again, this highlights the flaw in the imposition of a blanket ban against a particular group. There is no room for individual assessment. Consequently, some people who should not be allowed in are admitted and some who are admitted should not have been.

“Self-Evacuation is Better”

69Both Captain Craig and Ms Cluff testified that the ban was justified because people using wheelchairs cannot self-evacuate or are not able to autonomously exit the theatre. Thus, they would be a threat to themselves and others during a fire evacuation by virtue of constituting an obstruction to a safe evacuation. Captain Craig averred:

Self evacuation is key…You shouldn’t let them [people using wheelchairs] in because they can’t self-evacuate and will obstruct others. It’s not the same as someone using a walker or with low vision. They are in a wheelchair and can’t get out. The wheelchair itself is the obstruction. They don’t get the same movement. A person with a walker or cane can shuffle along with the crowd.

Famous Players’ counsel submitted, “We can all walk downstairs and out. There is a clear distinction. Wheels on stairs is a ‘no go’.” Later in these Reasons, we will examine the question of the mobility device of the wheelchair as the obstruction itself.

70Captain Craig testified that the Toronto Fire Services’ firefighters are trained and indeed are called upon to remove people from a fire who cannot “self-evacuate”. He gave the example of a “very obese person” whom they had great difficulty removing. The Tribunal notes that the “very obese person” would not be barred by Famous Players’ non-admittance policy at the Uptown. They have evacuated others who could not do so themselves due to unconsciousness or death. The Captain stated, “Carrying someone out is not a desirable way to be rescued because it means they may not have been able to get out alone. Self-evacuation is better.” The Tribunal agrees that self-evacuation is the better way, but not the only safe way. Self-evacuation during a fire or other emergency should not be a pre-requisite to admission. That would preclude many people (beyond just people using wheelchairs) in society from entering many buildings, fully accessible or otherwise. That surely should not be the litmus test for admittance to a public building.

71One has to be mindful when dealing with the issue of self-evacuation or autonomous exiting. It must be remembered that even a brand new building that complies with the current Building Code only has to have one of the three requirements Mr. Syrett enumerated: fire-rated elevator; sprinkler system; or floor area divided into two fire-protected zones. Therefore, a new movie theatre could be in compliance with the current Building Code, but yet not provide for autonomous exiting for those using wheelchairs. The Board heard evidence in the first phase that the new SilverCity Yonge-Eglinton has a fire exit in each of the auditoria leading to the main hallway of the theatre and an exit near the screen to a concrete stairwell leading to the outside. However, while a person using a wheelchair could autonomously use the main auditorium exit to get to the hallway, that is not the case with the screen exit. That is because there is a descending set of stairs in the auditorium to get to the screen exit. Indeed, it may even be easier for a person using a wheelchair to self-evacuate to the south exit of Cinema 2, to the north exit of Cinema 3 and onto the metal fire escapes of Cinema 1 of the Uptown than for the same person to self-evacuate via the screen exit at a SilverCity Yonge-Eglinton auditorium. Neither theatre violates the Building Code: one (SilverCity Yonge-Eglinton) because it has at least one of the three requirements (it actually has all three) and the other (Uptown) because it is “grandfathered” in.

The Specific Risks Created by the Presence of Persons Using Wheelchairs in the Uptown

72What are the specific unacceptable safety risks that Famous Players says are manifested by the presence of people using wheelchairs in the Uptown? Are they indeed unacceptable from a safety perspective alone, independent of “human rights” considerations? Can they be made acceptable by the imposition of certain conditions?

73At para. 10 of its written submissions, Famous Players wrote:

Both [Craig and Cluff] gave their opinions that the fire safety risks, in the circumstances, justify continuation of the non-admittance policy due to the lack of safe evacuation options for those in wheelchairs. While Famous Players supports this conclusion, this is only because, factually, no other conclusion can be derived from the evidence, since the Commission has offered no contradictory evidence.

Obviously the Tribunal does not agree with Famous Players that no other conclusion can be drawn from the evidence, for the Tribunal has done so. It is true that the Commission did not adduce contradictory evidence in the form of witnesses. Its counsel did, through cross-examination, expose some of the weaknesses in the evidence proffered by witnesses called by Famous Players. Surprisingly, the Commission did not call an expert on fire and life safety (e.g., fire safety engineer or former firefighter) to counter the evidence of Captain Craig and Ms Cluff. The Commission took a risk by not doing so.

74At para. 11 of its submissions, Famous Players wrote:

…it is Famous Players’ submission that only speedy evacuation could ensure safety, and that wheelchair patrons pose a danger both to themselves and to ambulatory patrons in their inability to exit using the fire escapes and exit stairwells up and down from the various auditoria within the theatre.

Ms Cluff wrote in her November 2001 “Discussion Paper on Fire Safety for Persons with Disabilities in Cinemas and Theatres” for Famous Players at section 3.3:

…the problem that is most difficult to resolve in older buildings is where to provide appropriate viewing positions for wheelchair users:

(a) Without blocking the row of seats for others exiting; and

(b) Without blocking the exiting aisles for all users.

This is a particular problem in those theatres where no special seating locations were initially provided for wheelchair users. Even if wheelchair users are able to transfer to standard patron’s seats, the basic matter of suitable storage and later recovery of wheelchairs is an issue in a fire, or other emergency situation, since in older settings there is generally little or no storage space available except the exit aisles, which cannot be used without blocking egress for all patrons. Further, staff might otherwise be occupied, and not free to bring the chair to the disabled patron in a timely way in an emergency situation, since they are likely to have other duties to perform, e.g.: To meet with Fire Department Personnel; to close or open certain doors.

75Ms Cluff also testified about the lack of a “safe-holding” area (e.g., a protected area offering one-hour security from fire and smoke)” or area of refuge in which people using wheelchairs could wait during an evacuation. In her accessibility report in phase one of the hearing, Ms Cluff had recommended installation of such safe-holding areas. In its April 18, 1994 “Barrier Free Accessibility Audit of the Cumberland and Uptown Theatres” (Exhibit 60), The Barrier-free Design Centre had this to say about “areas of refuge” at p. 12:

One way of providing a level of safety for those who are mobility impaired in the event of an emergency is to provide areas of refuge. Though the BUILDING CODE does not require areas of refuge for people with mobility impairments, this type of accommodation is highly recommended on each accessible floor. An area of refuge will provide a rated protection with separate ventilation and electrical system. They should be located near fire exits or in easily recognizable locations.

76In the conclusion to her November 2001 Report to Famous Players, Ms Cluff stated:

As such, it is my opinion that admission to such theatres without suitable solutions in place that provide appropriate access and egress should be discouraged, since there is a potential hazard for all building users when exit aisles are blocked. It is also recommended that information on such limitations be made available to patrons with disabilities at such locations.

The Tribunal notes that Ms Cluff does not seem to be suggesting an unequivocal outright ban of persons using wheelchairs at the Uptown but merely that without “suitable solutions” admission should be “discouraged”. This interpretation of her conclusion is also buttressed by her final recommendation that “information on such limitations be made available to patrons with disabilities at such locations.” This seems to presuppose that there would be no ban. Her report specifically dealt with the Uptown/Backstage and Eglinton theatres. The Tribunal notes that her viva voce evidence, however, made it clear that she thought the outright ban at the Uptown was indeed appropriate for safety reasons.

77Essentially, Ms Cluff’s and Captain Craig’s evidence focused on the unacceptable safety risk created by the presence of persons using wheelchairs (1) to themselves and (2) to others. The risk to themselves was because they can’t exit themselves “autonomously”. This created a risk to themselves because they might be injured or die from smoke inhalation (which both the Captain and Ms Cluff said was the most pressing and common cause of injury in fires) or from being burned to death. They averred that their presence could be a danger to the welfare of other patrons and employees because the person using a wheelchair might impede the safe egress of others during the evacuation by (a) blocking the seat aisle and (b) blocking the evacuation route.

(i) Risk to Themselves: “Dignity of Risk”

78Captain Craig said he thought the ban was appropriate for safety reasons and that persons using wheelchairs should not be in the Uptown because their presence posed a danger to themselves and to others. Ms Cluff drew the same conclusion. However, when pressed on the issue, both seemed to accept that people, ambulatory and non-ambulatory, assume different types of risk in their everyday lives. The two expert witnesses then averred that even if one can assume a risk for oneself, that person cannot assume the risk for others. Famous Players’ counsel made the same statement in her final argument. At para. 50 of its submissions, it wrote, “Firstly, while a disabled individual is entitled to assume a risk for him/herself, he/she is not and ought not to be entitled to put others at risk.” That seemed to be an admission that people using wheelchairs could assume the risk for themselves, so long as it was a fully informed one, and so long as their presence did not endanger the safety of others.

79The Tribunal agrees that a fully informed person should be able to assume risks for oneself. In the case at bar, the Tribunal finds that persons using wheelchairs should be able to assume the risk in attending the Uptown, as long as they do not infringe unreasonably upon other patrons’ and employees’ safety. These risks (as a result of the Uptown not being an accessible building) should be explained to them so that an informed decision to assume risk can be made by persons in wheelchairs and their attendants/companions. Indeed, if Captain Craig’s evidence that he would not want his grandchild to go the Uptown because of his “safety concerns” is to be believed (and the Tribunal does accept it), Famous Players may wish to give the appropriate information to all people going to the Uptown to see a movie. The issue of the implementation protocol and its content is discussed later under the section “Implementation Plan for Lifting the Ban”.

80In making the finding concerning the right of persons in wheelchairs to exercise the assumption of risk, the Tribunal draws on the expert testimony of Catherine Frazee in the first phase of the hearing. Ms Frazee spoke of the social and medical models of disability – the different “lens” through which society looks at people with disabilities. She testified about the concept of “disability disadvantage” and the architectural/physical and attitudinal barriers that people with disabilities have confronted over the years and in the present. She spoke of the stigma, exclusion and stereotyping that often occur; the treatment of and feeling by people with disabilities as being “the other” – outside the mainstream of society. She also gave evidence about “dignity of risk” and its importance. “Imposing a ban serves to broaden the exclusion already in place because of the inaccessible architecture.” In essence, it is akin to “throwing oil on the fire”. It is bad enough that the theatre is not wheelchair-accessible. It is compounded when you impose a blanket ban. As Commission counsel aptly put it, “The ban serves to increase or even perpetuate stigma by declaring that persons in wheelchairs or scooters are markedly different than other member of society – indeed it serves to make them outcasts.” They should not be made to feel or treated like outcasts. An outright ban to a public facility does that. In the present case, it could only be upheld if the safety risks were unacceptable. Famous Players has not proved this to be the case vis-à-vis persons using manual wheelchairs. Accordingly, people using manual wheelchairs shall be afforded the “dignity of risk” that others enjoy when coming to the Uptown to see a movie.

81It must be remembered that people (able-bodied and disabled alike) assess, assume and decline to assume, risks everyday. Some, like Captain Craig would not counsel his family to go to the 80 year old Uptown because of safety concerns. Michelle Amerie, a witness in the first phase who uses a wheelchair, testified that she skydives: “I jump out of airplanes.” People assess risk and decide to assume or not to assume those risks all the time. And of course society places limitations on the dignity of assessing and assuming risk. For example, one cannot assess the risk of crossing a street against a red light and successfully argue in court that s/he has the right to assess the risk and assume it. In light of that, the Tribunal will be placing certain conditions on the lifting of the ban that address safety issues.

(ii) Risk to Others

82Famous Players, Captain Craig and Ms Cluff were concerned that the presence of patrons using wheelchairs in the Uptown would constitute an unacceptable safety risk to other patrons and employees. This would be caused by their “impeding the safe egress of others” during an evacuation. Specifically, they believe that persons using wheelchairs would block the seat aisle and would “slow down or block” the evacuation.

Blocking the Seat Aisle

83The Tribunal agrees with Captain Craig and Ms Cluff that it would be unsafe and a violation of the Fire Code if persons using wheelchairs were allowed to block the seat aisles. That is why in Ms Cluff’s accessibility report (Exhibit 70), she recommended the removal of seats and the installation of designated wheelchair-spaces. In her viva voce evidence, she testified that the installation of such spaces would solve the “blocking the aisles” problem. Captain Craig also agreed. However, Ms Cluff testified that, absent that solution, there were no safe places for persons in wheelchairs to be in the three Uptown auditoria. The Tribunal does not agree. The Tribunal has carefully considered all the evidence, including the two Views of the Uptown and the comprehensive video of the Uptown interior and exterior (Exhibit 77). The Tribunal even had an empty wheelchair present during the second View which assisted in the spatial issues. The Tribunal agrees with Mr. Topping that there are safe spaces in the three auditoria where people in wheelchairs could sit.

84The physical layout of the auditoria in the Uptown creates limitations. Cinema 1 (on the upper level of the Uptown) has “stadium seating”. There is no room above or below the cross-aisle to safely create a space for a patron in a wheelchair. However, as designated by a circle with an ‘x’ through it in Appendix 1 to this Decision (floor plan of Cinema 1), there is room for one person in a wheelchair on the main level on either side. That would create two spaces for persons in wheelchairs in Cinema 1. The Tribunal is satisfied that persons in wheelchairs in those two locations would not pose an obstruction in case of an emergency evacuation. There are railings between them and the lower seats which would prevent patrons in those aisles from even exiting toward the persons in the wheelchairs.

85Cinemas 2 and 3 (on the lower level of the Uptown) are configured differently from Cinema 1. They are ramped or sloped configured auditoria. That makes it easier for designated wheelchair seating. However, there are other considerations at play discussed below, such as the safe exiting during an evacuation. The Tribunal finds that Cinemas 2 and 3 may safely hold one person in a wheelchair in each auditorium. The location in the front row of each auditorium is designated in Appendix 2 to this Decision (floor plans of Cinemas 2 and 3). The Tribunal has ruled that it will not order Famous Players to do renovations pending the closure in four months. However, if such action would not require a building permit, Famous Players may wish to consider removing two seats in the first row of Cinemas 2 and 3 so that a person in a wheelchair could sit there. If that does not occur, the person in a wheelchair will sit in front of the empty seats in the first row. The Tribunal is satisfied from the evidence that the person in a wheelchair seated in the first row of Cinemas 2 and 3 would not block those exiting. There is significant space between the first row and the screen for people to move freely so that the person in a wheelchair would not block the patrons to his/her either side in the first row of Cinemas 2 and 3.

86In the first phase, the Board heard evidence from some of the Complainants who said that they had transferred from their wheelchair to a theatre seat with the help of an attendant/companion. However, the remedy of lifting the ban is not just vis-à-vis the Complainants, some who never attended the Uptown and others who may choose not to do so again in the remaining four months of the Uptown’s life. This remedy applies to everyone who uses a manual wheelchair as a mobility device and who wishes to attend the Uptown. Accordingly, it is only reasonable to consider that some people in wheelchairs may be unable or unwilling to transfer to a theatre seat. Accordingly, they may remain in their wheelchair in the auditorium, subject to the conditions listed herein (e.g., two spaces in Cinema 1, one space in Cinema 2 and one space in Cinema 3).

87At p. 58 of the Board’s Decision, it wrote:

Being treated the same or differently per se does not trigger a discriminatory claim. The differential treatment must have a pejorative element to the individual or the group to which the individual belongs. Conversely, differential treatment providing a benefit is deemed to be acceptable by virtue of section 15(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c.11 (“Charter”) and section 14 of the Code. Both sanction “special programs” or affirmative action that would ameliorate the conditions of the disadvantaged.

It is not a violation of the Human Rights Code per se to limit the number of designated wheelchair-spaces. Indeed, in the state-of-the-art Building Code- compliant SilverCity theatres, there are a certain number of designated wheelchair-spaces. For example, in the SilverCity Yonge-Eglinton, there are designated spaces on either side of regular theatre seats on the main level of the auditoria. On each side, there would be space for two persons in wheelchairs. Presumably, persons in wheelchairs would be seated on a “first come, first served” basis to the point that all designated spaces were taken. The Tribunal takes “judicial notice” that this is the case with other public buildings (e.g., stadiums, arenas, etc.). With the Uptown, the Tribunal has limited the numbers, based not just on spatial limitations, but also on the limitations as they relate to the safe evacuation of all occupants.

Persons Using Wheelchairs Who Transfer to a Theatre Seat

88The Tribunal heard evidence from Ms Wong Ward, Mr. Fragale and Ms Chapman that they transferred from their wheelchair to a theatre seat. The Tribunal takes “judicial notice” that there may be other people in wheelchairs who are able and willing to transfer to a theatre seat. Based on the evidence, those patrons would not pose a risk to others by virtue of being seated. Their wheelchairs would be stored in a safe place away from the evacuation route. Accordingly, there would be no issue as to the wheelchair, as a mobility device, constituting an obstruction in an emergency evacuation. It is true that the patron without his/her wheelchair might be at risk and indeed perish from smoke inhalation. However, as indicated earlier, the Tribunal finds that the patron can make an informed assessment and assume that risk. In an emergency evacuation, several scenarios could occur. The patron could wait in his/her seat with little harm or ultimate harm occurring. The patron’s attendant or someone else (e.g., a firefighter, another patron, Famous Players employee) could carry the person out of harm’s way. The Tribunal finds that that would not create an unacceptable risk in the evacuation of others. The patron might be able to self-evacuate. And of course, in some situations, evacuation after the “first stage” or “second stage” alarm might not be required.

89Based on the foregoing, the Tribunal’s condition in terms of the number of wheelchair spaces in the three auditoria does not apply to those persons in wheelchairs who choose to transfer to a theatre seat and have their wheelchair moved to a safe location. The Tribunal is satisfied that there are spaces in which to store the wheelchairs (e.g., office, upper foyer area). Indeed, in some film showings, there might be so few patrons that Famous Players could safely store the wheelchairs in the actual auditorium, far away from any patrons and out of any evacuation route, or even in another empty auditorium, if applicable. Famous Players shall determine the number of wheelchairs and locations where they may be stored safely.

Blocking the Evacuation Route

90The major concern of Famous Players and experts Captain Craig and Ms Cluff was that persons using wheelchairs would block the flow of the evacuation and thus constituted an unacceptable safety risk. Ms Cluff drew an analogy to a rock blocking the flow of a stream. Based on Mr. Syrett’s evidence, the Views of the theatre and the video of the theatre, the Tribunal finds that the presence of a limited number of persons in wheelchairs (the number of which has been set by the Tribunal) would not block the safe flow of the evacuation of patrons in any of the three cinemas. In the event of the worst case scenario (e.g., a “fully involved” fire), to which the Tribunal must have regard, the Tribunal finds that the width of the various exiting aisles leading to the upper foyer and side metal staircases in Cinema 1 and to the lower foyer and the screen and side exits are sufficient to allow for the maximum of two persons in wheelchairs in Cinema 1 and one person in a wheelchair in each of Cinemas 2 and 3 exiting along with the other patrons. The Tribunal also had an empty wheelchair in the second View to gauge the spatial limitations in the Uptown.

91The Tribunal has limited the number of persons in wheelchairs, who are unable or unwilling to transfer to a theatre seat, to two in Cinema 1 and one in each of Cinemas 2 and 3. While the Tribunal finds that people in wheelchairs should be able to assume the risk of going to the Uptown, it still must consider safety issues for those and other patrons. It has considered the number of safe locations for the person in a wheelchair and exiting strategies for them and other patrons. The Tribunal is satisfied that there is room for one person in a wheelchair on either metal fire escape landing area in the case of an evacuation. While Captain Craig testified that they would “block” the evacuation on the metal escape, the Tribunal does not agree. He also said “the safest place is to be outside” during a fire. Chief Collins reiterated this view. When asked about exiting strategies at the Uptown, he answered, “I don’t know the building. The best place is to take the individual to the outside as fast as possible. It could be a landing on a fire escape. I am not familiar with the building.” Having attended two Views of the Uptown and viewed the video of the Uptown many times and having heard Mr. Topping’s evidence, the Tribunal is satisfied that there is enough room for one person in a wheelchair and his/her attendant on the metal fire escape landing without blocking the evacuation of others. The Tribunal also notes that it was unclear from Captain Craig’s evidence whether he made an inspection of the metal fire escapes. He did attend at the Uptown. As well, the Tribunal accepts the Captain’s evidence that most people will exit the same way that they had entered. In the case of Cinema 1, that would be through the main entrance to the upper foyer. However, as indicated earlier, the Tribunal takes the above decision with the view of the worst case scenario whereby there is a serious fire with a “full house” and two persons in wheelchairs in Cinema 1 (915 people) with most scrambling to exit through the main exit to the upper foyer, while others exit on the side metal fire escapes. The one person in a wheelchair with or without his/her attendant sitting on the landing will not block or obstruct the safe evacuation of other patrons. The Tribunal also notes that Captain Craig gave evidence that there are fire stations nearby and that they could arrive at the Uptown within 3-5 minutes of the fire station being alerted. It should also be noted that he indicated that a “fully involved fire” with a “flash over” can engulf the whole building within four minutes.

92With regards to Cinemas 2 and 3, unlike Cinema 1, a person in a wheelchair would have to negotiate a set of stairs to exit through to the lower foyer and out the east doors to the alleyway. This would be difficult. And the Tribunal accepts the evidence of the experts that the west exits past the screens are situated in such a way that they would create a “smoke stack or chimney”. As well they have many sets of stairs to exit outside to the street. Those exits would be nearly impossible for persons in wheelchair to traverse and not the first choice for able-bodied patrons. Based on Captain Craig’s evidence, it is probable that most patrons would exit through the east main entrance (the same way in which they entered Cinema 2 or 3) and out to the street. Some might exit from the side exit which leads to a small concrete landing outside and a set of stairs up to the street. The Tribunal accepts Mr. Topping’s evidence that there would be room for a person in a wheelchair on either concrete landing without blocking the flow of other people evacuating up the set of stairs. Again, taking a worst case scenario, given that there would only be room for one person in a wheelchair on either concrete landing in Cinemas 2 and 3, without blocking the egress of other out those exits, for safety reasons the Tribunal is limiting the number of persons in a wheelchair not able or willing to transfer to a theatre seat to one in each of Cinemas 2 and 3. To do otherwise (so too for the limit of two in Cinema 1) would constitute an unacceptable safety risk.

93The Tribunal notes the evidence of Captain Craig when asked whether persons in wheelchairs should stay put and wait for assistance during an emergency or attempt to evacuate. He answered, “There are various thoughts on this issue. It depends on various factors. Sometimes ‘yes’, sometimes ‘no’. They’re told to get to a safe place on the floor, generally near the stairwell or elevator lobby.” When it was put to Captain Craig that, in some situations, it would not be necessary to remove the person in a wheelchair from the floor, the Captain agreed. Indeed, in Famous Players’ Fire Safety Plan for the Uptown which has several inaccuracies (including reference to providing assistance to wheelchair-using patrons to get to the non-existent elevator), reference is made to stay put and await for assistance. There does not seem to be a universally acceptable protocol on the issue of whether persons in wheelchairs or other people who cannot or have difficulty ambulating, should await for assistance or attempt to evacuate themselves. Chief Collins made it quite clear that the Toronto Fire Services does not tell owners that they should refrain from assisting persons using wheelchairs. Assistance could be verbal and/or physical. He also testified that:

We can’t force owners to physically help persons in wheelchairs during an evacuation. That would be contrary to the Occupational Health and Safety Act…They should have a plan. They should give verbal assistance (e.g., tell them what exits, give direction, who should be moving out first, in order to ensure an orderly evacuation). Anything that is planned will generally run more orderly that what is not planned.

In any event, the Tribunal, must consider the worst case scenario, that even if persons in wheelchairs were told to wait, in the face of fire and/or smoke, many would attempt to self- evacuate. Accordingly, consideration of that fact, including the impact on other patrons and exiting locations and strategies have been considered by the Tribunal. Hence, the lifting of the ban with conditions.

The Non-Admittance Policy As It Relates to Power Wheelchairs and Scooters

94In the first phase of the hearing, the Board heard evidence about the nature and different types of mobility devices used by the Complainants (e.g., electric power wheelchairs; manual wheelchairs; and scooters). The Complainants testified about when they would use different mobility devices. Chairs could be customized to a great degree. Many manual wheelchairs fold and are easily stored. The power wheelchairs are much heavier, and sometimes larger, than the manual ones. Ms Wong-Ward testified that her power chair weighs approximately 150 pounds, while her manual one weighed in the range of 30 pounds. Ms Turnbull said her power chair weighs 200 pounds. Ms Chapman averred in a statement that her power chair weighs approximately 200 pounds. The above evidence concerns the weight of the wheelchairs only, exclusive of the person’s weight. Scooters can weigh in the range of 150-250 pounds, depending on the type of scooter. Clearly, the manual wheelchair is much lighter and more compact than the scooter.

95The Board also heard evidence from the Complainants about the type of mobility device they used when going to the movie theatre. Only Ms Chapman went to the Yorkdale theatre in her power chair (referred to below in para. 94). She transferred to a theatre seat to watch the movie. Ms Wong-Ward and Mr. Fragale went in a manual wheelchair and transferred to a theatre seat. Ms Turnbull testified that she only uses an electric wheelchair and no longer uses a manual one. In the first phase of the hearing, she testified that she “looked for accessible theatres because, with my electric chair, it’s impossible to go if it’s not accessible. My electric chair weighs 200 pounds and I wouldn’t feel safe going up a flight of stairs or escalator. Mr. Macaulay testified that he only uses his power chair when he goes shopping and is by himself. “I use the manual chair for everything else.” He averred that, due to the weight of the electric wheelchair, he wouldn’t go up stairs sitting in one. He would go up escalators in his manual chair, but not the electric one. When he went to the Uptown, his friends would carry him up the stairs and into the auditorium. “The escalator [at the Uptown] was too narrow for my wheelchair.” He also testified that he would transfer to a theatre seat when he went to Famous Players’ Sheraton theatre.

96None of the Complainants went to the Uptown in a power chair or scooter. Most of the evidence just referred to “wheelchairs” and dealt primarily with manual ones. Based on the evidence heard about the description and nature of power chairs and scooters, and the layout of the Uptown, and the Views and video of the Uptown, the Tribunal finds that the presence of a person using a power electric wheelchair or scooter at the Uptown would constitute an unacceptable risk. The ban is only lifted with regards to persons using manual wheelchairs. The greater size and even greater weight differential between power chairs and scooters and manual wheelchairs pose an unacceptable risk. Indeed, it is difficult to imagine a power chair or scooter fitting onto the escalator at the Uptown and riding it to the foyer. Furthermore, unlike the manual wheelchair, the Tribunal finds that a person using a power chair or scooter would obstruct the evacuation of others in the event of an emergency. Furthermore, there is not enough room in the exiting aisles to accommodate a person using a scooter and other evacuating patrons. There is not enough room for scooters on the small southern exit landing (where the person in a manual wheelchair could stay) for Cinema 2 and the northern landing for Cinema 3. The Tribunal also notes that there are risers or steps between the Uptown exit and the Cinema 1 fire escapes (approximately six inches), and between the exits and the Cinemas 2 and 3 “landings”. They are not level. Accordingly, the much greater weight of a power chair or scooter would make negotiating such risers or steps very difficult.

Implementation Plan for Lifting the Ban

97The Tribunal is ordering the ban lifted with conditions enumerated above. The Tribunal recognizes that Famous Players will need some time to implement the Tribunal’s Decision and Order, including the creation of an implementation protocol and the training of managers and staff. Famous Players shall have one month from the date of this Decision and Order to develop an implementation protocol, consult with the parties about its content, and place it before the Tribunal for approval. The non-admittance policy shall be revoked upon approval of the implementation protocol by the Tribunal.

98The implementation protocol shall deal with how Famous Players will facilitate the admittance of persons in wheelchairs at the Uptown, within the spirit of the Tribunal’s Decision. For example, Famous Players may create a script to be used by managers/staff when a person in a wheelchair goes to the box office to buy a ticket to ensure that the person is told and understands that s/he is assuming the risk. Famous Players may require the person to sign a waiver or “assumption of risk” form.

99The Uptown’s Fire Safety Plan and Famous Players’ training manuals provide for the assistance of employees to persons using wheelchairs. Famous Players’ protocol and training for the lifting of the ban should include any assistance to be given to patrons in wheelchairs by employees (e.g., asking patrons to clear the escalator so that a person in a wheelchair and his/her attendant can negotiate it). Famous Players shall determine the extent and content of that protocol and training. The Tribunal is not ordering that assistance should extend to carrying people in or out of their wheelchairs, or even carrying empty wheelchairs. Famous Players rightly has an occupational health and safety obligation to its employees. In the first phase of the hearing, one of the Complainants, Marilyn Chapman testified about getting help down the steep staircase into the now closed Yorkdale theatre then back up the stairs (see paras. 83 and 85 of the Board’s Decision):

“My motorized chair is heavy, 100-200 pounds. There was a lot of banging on the stairs as the chair was moved…” On cross-examination, she acknowledges that in her May 1998 statement to the Commission, she says the wheelchair weighed 200 pounds [not including her weight]…At the end of the movie, [T]he caretaker found another Famous Players employee. They lifted the heavy chair. “I was afraid they would have a heart attack.”

The above constitutes an unacceptable risk.

Good Will and Co-operation

100If the implementation is to be successful and persons in wheelchairs are to access the Uptown until it closes in September 2003, there needs to be a spirit of good will and co-operation. Compromises may be needed. For example, for safety considerations, Famous Players may need to ask other patrons to wait while it clears the escalator so that the person in a wheelchair and his/her attendant go on the escalator up to the main foyer. Or they may need to ask the person in the wheelchair to wait while other patrons use the escalator. By way of another example, Famous Players may need to ask certain questions of persons in wheelchairs as part of its implementation protocol. The manager or staff member asking them must do so in a polite and sensitive manner. The person in the wheelchair must appreciate that appropriate questions may be asked. Famous Players may want to assure itself that the person using a wheelchair has the necessary information to make an informed choice to enter the Uptown.

ORDER

101The Tribunal orders:

(1) Famous Players’ non-admittance policy at the Uptown for persons using manual wheelchairs (“the ban” as represented in Exhibit 33) is revoked, upon approval by the Tribunal of Famous Player’s implementation plan for lifting the ban, with the following conditions:

(a) the number of persons using wheelchairs admitted shall be limited to two in Cinema 1 and one person in each of Cinemas 2 and 3. The designated locations are described in the Decision and marked on the Appendices to this Decision and Order;

(b) there shall be no limit on the number of persons in wheelchairs who are able and willing to transfer to a theatre seat, subject to available storage space for the wheelchairs;

(2) Famous Players shall produce an implementation plan for lifting the ban, provide it to the parties and file it with the Tribunal for approval, within one month. The plan shall include a protocol which shall deal with such issues as: the form and content of any notice or “script” to be given to persons in wheelchairs; the content of any waiver or “assumption of risk” form; a description of training for managers and staff; and the nature of assistance to be provided to persons in wheelchairs;

(3) Famous Players shall provide training for managers and staff at the Uptown regarding implementation of the lifting of the ban;

(4) Famous Players shall update the Fire Safety Plan for the Uptown; and

(5) The Tribunal shall remain seized of this matter to deal with any implementation issues arising from the revocation of the non-admittance policy, to the date of closure of the Uptown.

Dated at Toronto, this 9^th day of May, 2003.

“Matthew D. Garfield”

Matthew D. Garfield

Chair

Ontario Human Rights Commission v. Famous Players Inc., 2003 HRTO 10

Case Summary

A P P E A R A N C E S

INTRODUCTION

ISSUES

DECISION

BACKGROUND: THE BOARD’S DECISION

Excerpts of the Board’s Decision Dealing with the Safety Issues

Revoking the Non-Admittance Policy: Liability vs. Remedy

Remedial Powers in the Code

ORDERING RENOVATIONS PENDING CLOSURE: FUNCTUS OFFICIO

In the Alternative that the Tribunal is not Functus Officio

EXTENSION OF CLOSING DATE BY THREE WEEKS: FUNCTUS OFFICIO

In the Alternative that the Tribunal is not Functus Officio

LIST OF WITNESSES

THE ROLE OF EXPERT EVIDENCE

IS IT SAFE TO REVOKE THE NON-ADMITTANCE POLICY?

Introduction

Safety Issues: Type and Nature of Emergencies

Threat of Fire and Risks

“Smoke is the Killer”

Protection Against Fire

Specific Safety Concerns As A Result of the Presence of Persons Using Wheelchairs

“Everyone Gets In Except People Using Wheelchairs”

“Self-Evacuation is Better”

The Specific Risks Created by the Presence of Persons Using Wheelchairs in the Uptown

(i) Risk to Themselves: “Dignity of Risk”

(ii) Risk to Others

Blocking the Seat Aisle

Persons Using Wheelchairs Who Transfer to a Theatre Seat

Blocking the Evacuation Route

The Non-Admittance Policy As It Relates to Power Wheelchairs and Scooters

Implementation Plan for Lifting the Ban

Good Will and Co-operation

ORDER