Lepofsky v. Toronto Transit Commission, 2007 HRTO 23

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Lepofsky Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto Transit Commission Respondents

INTERIM ORDER

Adjudicator: The Honourable Alvin B. Rosenberg, Q.C. Date: July 26, 2007 Citation: 2007 HRTO 23 Indexed as: Lepofsky v. TTC

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Amyn Hadibhai, Counsel David Lepofsky, Complainant ) David Lepofsky, C. Clifford Lax, and Amy Salzyn, Counsel Toronto Transit Commission ) Angela Rae, Counsel

1The hearing in this matter was held on April 26 and 27th, May 10 and 11th, and July 4, 2007.

2Counsel have put before me a great deal of material and lengthy oral arguments regarding liability and remedies. It will take several months to digest all of the material and make a final award. However, since I deem the matter to be urgent, I have decided to make a preliminary award which will provide a course to be followed by the parties but will not at this stage deal with all remedies.

3The Complainant is a lawyer, who is and was, at all material times completely blind. Previously Mr. Lepofsky was the Complainant against the Toronto Transit Commission (“TTC”) in a similar proceeding except that it referred to the subway rather than to surface vehicles. Mr. Lepofsky was successful in that proceeding (2005 HRTO 36 Lepofsky v. Toronto Transit Commission). The current complaint was filed on August 31, 2005 and alleges disability discrimination in services.

4Mr. Lepofsky argued that the TTC has a duty under the Human Rights Code to accommodate his needs and the needs of other visibly impaired persons by orally announcing in clear terms and on a consistent basis all streetcar and bus stops.

5The relevant Code provisions are:

Section 1 provides:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of …disability.

Section 10 defines disability as including, inter alia (a): “blindness or visual impediment” as well as “(c)” a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language”.

Section 11 defines constructive discrimination:

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

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

b. it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S.O. 1990, c. H.19, s. 11(1).

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any (emphasis added).

Section 17 provides in material part:

(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) The Commission, the Tribunal or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any (emphasis added).

6It is clear, and I so find, that the failure of the TTC to announce all bus and streetcar stops is a prima facie breach of the Code. The Complainant and other visibly impaired passengers are entitled to be accommodated under the Code. I also find that the most appropriate accommodation available is to have all stops on both the streetcar line and the bus line regularly and consistently announced in clear terms.

7In my view, the only relevant issue raised by the TTC is that this accommodation would cause undue hardship as referred to in the Code. The TTC has submitted that it would be dangerous to have the drivers announce the stops when they have so many other duties to perform.

8The TTC failed to establish the undue hardship defence for a number of reasons which include:

1. They did not call an expert or even a driver to testify that the proposed accommodation was dangerous.

2. Some drivers do announce all stops and the TTC knowing this not only did not indicate to them to stop because it was dangerous but in fact commended them for their performance.

3. The TTC instruct their drivers to announce major intersections and this is no different from a danger point of view than announcing other stops.

4. They require the drivers to announce all stops when the weather is inclement and the traffic is very heavy or the view of the route is otherwise obstructed. Surprisingly, they are comfortable with announcements in circumstances where they might think it more dangerous i.e. inclement weather. This condition makes it difficult for sighted people to see. By giving these instructions it is clear that the TTC is prepared to accommodate sighted people who have some difficulties but not prepared to accommodate blind people who have severe difficulties.

9The TTC and Mr. Lepofsky have asked that if I do appoint a monitor to assist them in carrying out my award that it be Matthew D. Garfield, former Chair of the Human Rights Tribunal of Ontario who is acting as monitor with regard to 2005 HRTO 36 Lepofsky v. Toronto Transit Commission.

10I order that within 15 days the Respondent develops an implementation plan whereby all surface stops will be clearly and consistently announced.

11Mr. Lepofsky described how vigilant a blind person has to be in travelling by bus or streetcar. Counsel for the TTC countered with the observation that all passengers have to be vigilant. This shows a lack of understanding of the difficulties that a blind person has in dealing with the invisible world while travelling by public transportation.

12The TTC is to implement a program whereby all surface stops will be clearly and consistently announced and the program should be in place within 30 days of the date hereof. The program asked for by Mr. Lepofsky will cost the TTC little if anything, and if there is a cost, it is minor compared to the cost of making buses and streetcars accessible for wheelchair users or having movie theatres accessible for wheelchair users.

13As I indicated I intend to make a final award as soon as possible and I will in that award cover the various remedies that will be required of the Respondent.

14Accordingly I remain seized of this matter but make this Order to start the process of correction now.

ORDER

(1) The TTC Drivers shall announce all surface stops clearly and consistently.

(2) I appoint Matthew D. Garfield, former Chairman of the Human Rights Tribunal of Ontario as monitor for the implementation of my orders. His powers, duties and terms of appointment are as ordered for him in 2005 HRTO 21 Lepofsky v. Toronto Transit Commission.

(3) I remain seized of the matter.

(4) I Order that the TTC develop an implementation plan within 15 days and implementing it within 30 days of the date of this Order.

The implementation plan shall include:

1. monthly audit and reporting letter to the Tribunal, the monitor and the other parties

2. educational seminars for drivers, supervisors and senior management

3. changes to its policies to provide that failure of employees to do as directed may result in serious sanctions including dismissal.