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

Respondent

DECISION

Adjudicator: The Honourable Alvin B. Rosenberg, Q.C.

Date: November 21, 2007

Citation: 2007 HRTO 41

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 Salyzyn, Counsel

Toronto Transit Commission, Respondent ) Angela Rae, Counsel

[1] On the 26th day of July, 2007, I issued an Interim Decision in this matter: [2007 HRTO 23](https://www.minicounsel.ca/hrto/2007/23). This final Decision is intended to supplement the Interim Decision and not to replace it.

[2] I remain seized of this Complaint in order to receive reports and follow the progress in carrying out the awards.

[3] The Toronto Transit Commission (“TTC”) is a two-time offender. The hearing of this Complaint involving its surface fleet (i.e., buses and streetcars) occurred after my ruling against the TTC in a separate Complaint about subway station stop announcements: [2005 HRTO 20](https://www.minicounsel.ca/hrto/2005/20).

[4] The TTC should have asked themselves many years ago, what can we do to help? How can we accommodate these visually impaired patrons? Instead they resisted with all means at their disposal. Surely they must have realized that it cannot be undue hardship to announce all surface stops when their own policy requires that they announce major stops, and all stops under some circumstances.

[5] The appropriate remedies are determined with this history in mind.

[6] In determining the remedies I have also considered that the TTC is a quasi-government agency and that the breaches of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”) are serious and substantial. Section 41 of the Code allows that the Tribunal fashion remedies to:

1. rectify past breaches
2. ensure that the TTC will not breach the Code in the future.

[7] In his factum, the Complainant argues that:

TTC’s protracted recalcitrance has imposed enormous burdens on Lepofsky. Lepofsky has had to invest an extraordinary number of hours of his time into fighting TTC. This case has required fully six hearing days, plus a substantial amount of time to make his disclosures, review TTC disclosures, and prepare to testify, to cross examine TTC’s witness, to prepare this factum, and to argue the case. This comes after 11 hearing days in TTC #1 [Complaint about subway announcements]. Few have the time for such battles against their own municipal government or its commissions like TTC. Pitted against him are all the public resources the TTC can muster. This will understandably deter most from enforcing their human rights. No one should have to undergo this once, much less twice, just to have their basic human rights respected, even if a complainant is fortunate enough to have legal training and access to generous pro bono legal assistance. The remedies issued in this case should make TTC significantly change how it handles disability accommodation requests in the future, so that Lepofsky or another TTC patron does not have to run this gauntlet again.

[8] The TTC causes irreparable harm to visually impaired patrons every day it refuses to announce all stops. The Complainant has proven that the TTC is in breach of the Code, notwithstanding its elaborate defence that it provided the appropriate means of accommodating visually impaired patrons.

[9] I reject the argument that there is in place sufficient safeguards to prevent Code violations. These so called safeguards have not stopped the Code violations nor has the TTC attempted to do so, prior to my ruling.

[10] Although the remedies suggested by the Complainant are consistent with the above and justified, I order only those listed below, but the Tribunal may be addressed in the future to impose others if the situation is not resolved within one year.

11I have reviewed the TTC’s November 1, 2007 reporting letter to me with charts following its second monthly audit of operators’ compliance with my Order directing that all surface stops be called. The TCC has implemented my Order quickly and the initial results are encouraging. There is, of course, room for improvement. In the letter, Chief General Manager Gary Webster writes that the audit shows that 81 percent of all surface stops were called, which includes both automated and operator called stop announcements. This is an impressive 12 percent increase from the results of its first audit last month of 69 percent.

[12] Accordingly I order the following:

1. My Interim Order dated July 26, 2007 remains in effect.

2. The Educational Seminars and training ordered by me on July 26, 2007 shall extend to all future drivers, supervisory personnel, and senior management.

3. The job descriptions of applicable TTC employees, including senior management, shall be amended in terms which the Monitor approves to include TTC’s compliance with this Tribunal’s Orders. In any promotional decision or performance review of said employees, the TTC shall take into account an employee’s performance with respect to disability accommodation and accessibility.

4. The TTC has decided to replace the manual surface route stop announcements with an automated stop announcement system. The system will be required to provide the announcements of all stops 100 percent of the time. If after one year of operation of the automated announcement system, a 98 percent rate is not achieved and maintained, the TTC shall revert to manual announcements until it can ensure that the automated announcements will exceed 98 percent performance.

5. The TTC shall, within six months of this Order, arrange for the TTC Commissioners to undertake a broad educational program, similar to the one recently attended by the TTC senior management, on the obligation of the TTC to persons with disabilities under the Code and related legislation. The educational program shall be approved by the Monitor.

6. Within six months of this Tribunal’s Order, the TTC will hold an open, accessible and advertised public forum on issues of accessibility and accommodation of persons with disabilities on TTC transit services. It shall hold such forums at least annually for the next three years. This forum will be held outside regular business hours. The Advisory Committee on Accessible Transit (“ACAT”) will be invited to attend and co-chair the forum with the TTC. All TTC Commissioners will be required to attend and participate in the forum. The forum will be scheduled so as to allow the attendance of as many members of TTC’s senior management team as is possible. In any event, the Chief General Manager and all senior managers who report directly to him shall be expected to attend this forum. The terms of reference, the participants, TTC staff, and general plans for this forum shall be approved by the Monitor.

7. The burden of these proceedings has been on Mr. Lepofsky and he would ordinarily be entitled to a substantial damage award; however, he has refused to accept even one dollar in that regard. Notwithstanding his position, I award $35,000 in damages to him for loss arising out of the infringement of his rights under the Code, to be used as he sees fit.¹ The money is for him personally but if he chooses to give some or all of it to charities that is entirely in his discretion.

8. Prejudgment interest on the award is payable at the rate specified under the Courts of Justice Act, R.S.O. 1990, c. C.43, to commence from the date of the filing of Mr. Lepofsky’s Complaint. Post judgment interest is also awarded at the rate specified under the Courts of Justice Act, to commence thirty days from the date of this Order.

Footnotes

1. 1In Payne v. Otsuka Pharmaceutical Co. et al., [2002] O.H.R.B.I.D. No. 19, as part of the “make-whole” remedy, notwithstanding the Complainant asked for a nominal monetary award of $1 (the Commission asked for substantially more), the Board of Inquiry (Human Rights) awarded her $15,000 in general damages, including for mental anguish, in total from the various Respondents.