HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Delano Brown
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Trebas Institute Ontario Inc.
and Ron Brandt
Respondents
DECISION
Adjudicator: Susan Serena
Indexed as: Brown v. Trebas Institute Ontario Inc.
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
Delano Brown, Complainant ) On his own behalf
Ontario Human Rights Commission ) Kikee Malik, Counsel
Trebas Institute Ontario Inc., Respondent ) David Leonard
Ron Brandt, Respondent ) On his own behalf
INTRODUCTION
1The complainant in this matter, Delano Brown (“Brown” or the “complainant”), is both legally and clinically blind. There is no dispute between the parties that Brown suffers from a disability within the meaning of section 10(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Brown’s complaint alleges the responding parties discriminated against him in the provision of services on the basis of disability.
2Trebas Institute Ontario Inc., (“Trebas” or “the school”) is a post-secondary private career college. At the relevant time Trebas operated under the Private Career Colleges Act, R.S.O. 1990, c. P-26 (since replaced by the Private Career Colleges Act, 2005, S.O. 2005, c. 28) (the “PCCA”). The school, which is located in downtown Toronto, offers four programs of study, one of which is a program in Music Business Administration (“MBA program”).
3This complaint relates to the events surrounding Brown’s efforts to enrol in the MBA program in January and April 2001.
4Until March 2001, the respondent Ron Brandt (“Brandt”) was the Director of Admissions at Trebas. Two other individuals at Trebas who had dealings with Brown were:
(a) George Hood (“Hood”), the school’s Director until late November 2000; and,
(b) Tim Bulmar (“Bulmar”), a Financial Aid officer at Trebas.
5For the reasons that follow, I find that Trebas discriminated against Brown on the basis of disability because it failed to:
(a) take the appropriate steps to put the accommodation Brown required as a result of his disability in place in time for him to enrol in the MBA program in April 2001; and,
(b) denied Brown’s request to defer his April enrolment date in order to provide additional time to arrange this accommodation.
6With respect to the respondent Ron Brandt I find that he was, at all material times, acting within the scope of his duties at Trebas when he denied Brown’s request for a second enrolment deferral as required under the school’s one-deferral only policy.
FACTS
7The pertinent facts are not in dispute and the evidence before the Tribunal regarding the various events that transpired is generally consistent. Further, at the outset of the hearing Trebas acknowledged that as a result of his disability, Brown required specially outfitted computer equipment and written course materials in alternate format to enrol in the MBA program.
8Trebas is a small, but well recognized, private career college that offers courses of study related to the recording arts, film and television production. The MBA program is a nine month course of study that requires students, who are enrolled in this program, to receive classroom instruction, utilize text books and other written materials.
9On October 20, 2000, Brown met with Ron Brandt to inquire about whether he could enrol in the MBA program at Trebas. That same day, Brown passed the entrance test and completed the application process and was informed he had been accepted into the MBA program scheduled to commence in January 2001. Brown then signed the enrolment agreement and paid the $100.00 enrolment fee.
10Prior to accepting Brown, Brandt asked George Hood if Trebas could accommodate Brown from an “academic standpoint”. Before Hood affirmatively responded to this inquiry, he spoke to Brown about the arrangements he required to attend Trebas.
11Brown testified that on October 20, 2000 he informed both Hood and Brandt he would require:
i) a computer with speech identification software, scanner and printer (“computer equipment”); and,
ii) written course materials in either electronic or audio format (“alternate format”).
12He also indicated he would tape record each lecture and that Dina Tabbara, an acquaintance who was also present at this meeting and intending to enrol in the MBA program starting in January 2001, would provide assistance with note taking and studying. Hood’s recollection of this meeting was vague. Brandt recalled a discussion at this meeting about scanners, books in alternate format and the role to be played by Tabarra. However, Brandt testified he was not concerned with these matters because they did not fall within the scope of his responsibilities as Director of Admissions.
13Hood also made arrangements for Brown to speak to Paul Kitchen, a business acquaintance who is blind, in the expectation that Kitchen could provide advice to Brown regarding the technology and assistance that is available for visually disabled individuals. Hood testified he also spoke to Kitchen about the accommodation Brown would require and the services that are available through the CNIB for obtaining books in Braille. However, Hood could not point to any other steps he took to arrange for these texts (or for arranging any of the other accommodation measures that Brown required or instructing any Trebas employee to assist Brown) before his employment at Trebas ended in late November 2000.
14Brown and Kitchen both testified about their telephone conversation. Brown testified he was already familiar with the equipment Kitchen was using, so the information he received from Kitchen was not particularly useful. Kitchen testified he told Brown he was the best person to determine what he required because what works best varies from person to person.
15To attend Trebas, Brown also required financial assistance that is available from the Ontario Student Awards Program (“OSAP”). The application for OSAP required Brown to obtain transcripts from the various high schools he had attended.
16Brown also learned from staff at George Brown College that there is a bursary program, the Bursary for Students with Disabilities (“the Bursary”), to cover the cost of the computer equipment and other assistance he required. Bulmar, who was initially unaware of this program, did obtain a copy of the application form, which Brown signed in November 2000. However, Bulmar, who as a financial aid officer was responsible for submitting the completed application for processing, could not submit the application without the medical information and three quotes for the computer equipment that had to accompany the bursary application.
17In early December 2000, Brown inquired about whether he could defer his enrolment date to April 2001 because his applications for OSAP and the Bursary were incomplete and he did not have the computer equipment. In his testimony, Brown also indicated he was concerned that he did not have any information about whether the course materials were available in alternate format and he was becoming concerned about whether he could rely on Tabarra for assistance.
18On December 15, 2000, Trebas approved Brown’s deferral request. Brandt agreed this request was granted on a routine and unconditional basis.
19In January 2001, Brown spoke to Bulmar about the problems he was encountering in getting his transcripts for OSAP and the quotes for the Bursary. Brown also raised his need for written course materials in alternate text and told Bulmar he had been informed by someone at George Brown College that these were all matters that should be taken care of by Trebas. Bulmar replied that he did not know what to do because this was the first time he had to address this type of situation. Bulmar did participate in a conference call that helped Brown to obtain one of his transcripts.
20In January 2001, Bulmar did fax the first term book list to Brown. Bulmar testified he was not responsible for assisting Brown to obtain course materials in alternate format and he did not know how to go about doing this. Brown testified he called some of the publishers but could not get the information he required regarding how to obtain books in alternate format. Brown also called the CNIB for assistance and testified he was once again told the school should be making these arrangements. Bulmar could not recall any other steps he took to assist Brown to obtain the computer quotes or texts in alternate format.
21Although Brown’s OSAP application was approved in February, his application for the Bursary remained incomplete in March because he could not get more than one quote for the computer equipment. Bulmar testified he was not responsible for getting quotes and it was up to Brown to obtain this information because he was the only person who knew what equipment he required.
22Brandt testified that at some point in time he received a telephone call from Tabarra who asked that she not be placed in Brown’s class because, she alleged, Brown was harassing her. Brandt testified he did not tell Brown about this complaint because Tabarra asked him not to. Tabarra, who was not called to testify at the hearing enrolled in the MBA program that commenced in April 2001.
23On March 26, 2001, Brown initiated a telephone conversation with Brandt to ask for another enrolment deferral (from April 2001 to July 2001) because he still did not have the Bursary, computer equipment or information about the availability of the course materials in alternative format. Brandt asked Brown to meet with him later that same day to discuss this request. Brandt testified he wanted to meet with Brown so that he could explain why his request was being denied.
24During this meeting Brandt told Brown he could not defer his enrolment until July 2001 and he had to either enrol in April 2001 or take a 6 to 9 month “cooling off period” before he could re-apply for admission. He suggested that Brown get everything he needed in place first before looking for a start date because the class is limited to 20 students and when a “seat” is being held for Brown another student cannot enrol in the program. Brandt did not tell Brown about the one deferral-only policy at Trebas or provide any other explanation or reason for why this request was being denied.
25At the hearing, Brandt testified the only reason he denied Brown’s request for a second deferral was because of the one-deferral only policy at Trebas. He also testified he thought Brown still had the desire to attend Trebas and that he was aware that Brown was still trying to get the books and computer equipment he required but Brandt stated these were matters “outside the school’s control”.
26Both Brandt and David Leonard, the President of Trebas, testified the one- deferral only policy had been implemented because each time a student defers it generates paperwork because a new enrolment agreement must be completed for the Ministry. Leonard indicated the school had also encountered problems trying to track the multiple deferrals it had granted in the past to foreign visa students.
27Brandt explained the cooling off period was to allow a student, like Brown, to re-assess his situation and determine what he wanted to do so that there were no more false starts. Leonard stated there was no requirement or policy at Trebas for a “cooling off period”.
28Both Brandt and Leonard also testified the MBA program is typically not offered in July because not enough students enrol to commence this program in July. Brandt agreed he did not provide this information to Brown. Leonard testified this was because the decision to commence a program in July is only made a few weeks before the proposed start date when the enrolment figures are known so Brandt would not know in March whether there would be a program starting in July.
29Ms. Olga Dossis, a disability coordinator at George Brown College, testified about the barriers faced by students with visual disabilities and the need for these students to have classroom assistance, written material in alternate format and specialized computer equipment. Ms. Dossis also testified that arranging the required accommodation can take time in which case interim accommodation (e.g. having another student take classroom notes or tape recording required reading) should be put in place by the institution so the student can commence his studies.
30Dossis also testified the Bursary provides up to $10,000.00 for various types of accommodation (including computer equipment, transcribing or recording written course materials and other classroom assistance that might be required) so the school does not incur the financial cost of accommodating a student with disabilities. It was also her opinion that it was the school’s responsibility to assess the student’s requirements, obtain necessary documentation and quotes for the Bursary application and arrange for written course material in alternate format.
31David Leonard testified Trebas has only four or five employees and its only source of funding is the tuition fees it charges therefore Trebas cannot be compared to schools like George Brown College that have hundreds of employees and receive government funding. He further stated in 2001 there was turmoil at Trebas because shortly after Hood left in November 2000, his successor was critically injured in a motor vehicle accident and he was trying to run the school from Montreal and search for a new director. During this period Brandt also accepted another job and subsequently left the school in late March 2001.
32Leonard vehemently denied that he, or anyone associated with Trebas, ever intended to discriminate against Brown. He stated that, if Brown had called him or if he had been made aware of Brown’s circumstances, he would have assisted Brown to enrol in the MBA program.
33Brown testified he was hurt and angry as a result of being unable to enrol at Trebas. He expressed frustration over the treatment he received and was upset that his request for a second deferral was denied just when he thought everything was going to finally come together. He wanted to attend Trebas so that he could do something with his life, earn a “decent income” and contribute to the community. He felt that if he was required to re-apply and start all over again, he would simply face the same difficulties and frustrations he had just encountered.
34Brown testified he did not enrol in the MBA program in April 2001 because the funding, books and equipment he required to accommodate his disability were not in place. But, he was confident everything was falling into place and he would be able to enrol in July 2001.
The law and the ISSUES:
35Section 1 of the Code provides that “Every person has a right to equal treatment with respect to services, goods and facilities without discrimination because of … disability”. This case involves the provision of services, namely educational services, to an individual who suffers from a disability. Section 9 of the Code contains the following prohibition: “No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part”.
36The Commission bears the legal burden of proving the respondents contravened sections 1 and 9 of the Code. However, once the Commission establishes a prima facie case of a violation of the Code, the burden then shifts to the respondents, Trebas and Brandt, to prove any legal justification or defence.
37Therefore, the issues that must be determined in this case are:
did Trebas and/or Brandt discriminate against Brown on the basis of his disability; and if so,
do Trebas and/or Brandt have a legal justification for their actions (e.g. was Brown accommodated to the point of undue hardship)?
Did Trebas Discriminate Against Brown on the Basis of his Disability?
38The Commission contends that Trebas and Brandt discriminated against Brown when they failed to eliminate the barriers that prevented him from enrolling in the MBA program and when they refused to grant Brown’s request for a second deferral of his enrolment date.
39Both Trebas and Brandt deny they discriminated or intended to discriminate against Brown.
40The right to equal treatment under section 1 of the Code means that a person with a disability has a right to the provision of services, including education, in both a dignified and as full a way as an able-bodied person. Accordingly, a prima facie breach of section 1 is established where an individual is unable to access a service because of a barrier related to that individual’s disability that is not present for able-bodied persons. (see: Barber v. Sears Canada Inc. (No.3) (1994) 1994 CanLII 18417 (ON HRT), 22 C.H.R.R. D/415 and Quesnel v. London Educational Health Centre, (1995), 1995 CanLII 18159 (ON HRT), 28 C.H.R.R. D/474).
41The right to access educational programs or courses offered by a private vocational school or career college, like Trebas, has previously been determined to be a service that is subject to section 1 of the Code. (see: Rawala v. Devry Institute of Technology, (1982) 3. C.H.R.R. D/1057).
42Intention to discriminate is not a necessary element for establishing discrimination contrary to section 1 and 9 of the Code. Accordingly, the Commission is not required to prove that the respondents intended to discriminate against Brown. Further, the evidence in this case does not support the conclusion that either Trebas or Brandt intended to discriminate against Brown. Rather, based on the evidence, I find the individuals at Trebas who dealt with Brown were simply unaware of the duty the Code places on a service-provider, like Trebas, to accommodate Brown’s disability and the role they should play in discharging that obligation.
43In this case, the following must be established for there to be a prima facie breach of section 1 of the Code:
i) Brown has a disability within the meaning of the Code;
ii) Brown was unable to access the educational services provided by Trebas; and,
iii) Brown’s inability to attend Trebas is because of a barrier related to his disability that is not present for other individuals who are not similarly disabled.
(See: Quesnel v. London Educational Health Centre (1995) C.H.R.R. D/ 474 (Ont. Bd. Inq.).
44There is no dispute between the parties that Brown has a disability protected by the Code and he was unable to enrol at Trebas. Therefore, the only issue left to be determined is whether Brown’s inability to enrol at Trebas was because of a barrier related to his disability which is not present for an able-bodied person. Trebas also conceded that as a result of his disability Brown required a specially outfitted computer (for which he also required financial assistance that is available through the Bursary for Students with Disabilities) and written course materials in alternate text to enrol in the MBA program.
45There is also no dispute in the evidence that Brown offered to put these accommodation measures in place and took various steps to have the Bursary, computer equipment and course materials in alternate text in place so he could enrol at Trebas. The evidence also establishes that both Brandt and Bulmar were aware that Brown was encountering difficulties (e.g. getting computer quotes to complete the application for the bursary and obtaining texts in alternate format) in putting these measures in place in a timely manner. It is also clear from the evidence that no individual at Trebas had responsibility for, or took meaningful steps, to either arrange this accommodation so Brown could enrol at Trebas or provided him with the assistance he required to put the accommodation in place in time for him to enrol in either January or April 2001.
46Brandt considered Brown’s inability to obtain written course material in alternate format and the Bursary for the computer equipment in time to enrol in April 2001 to be matters outside the control of Trebas. Bulmar’s explanation for not providing Brown with further assistance was that he did not know how to obtain textbooks in alternate format and only Brown knew what computer equipment he required. In short, these individuals thought that Brown was solely responsible for arranging the required accommodation. While the unexpected absence of a Director who could provide direction to staff regarding this situation may well explain what transpired, it does not constitute legal justification under the Code for the failure to eliminate the disability related barriers to enrolling at Trebas that confronted Brown.
47It is against this backdrop and misapprehension of Trebas’ legal obligation to remove these barriers that the decision to deny Brown’s request for a second deferral is made. The evidence is that Brown was denied a second deferral solely because of the one deferral-only policy in place at Trebas. Of course, the reason he required this deferral was because the accommodation he required was not in place in time to allow him to enrol in April. But, rather than granting Brown’s request to defer his April enrolment date, Brandt told Brown he had two options: enrol in April or take a six to nine month “cooling off” period before he could re-apply for admission to Trebas.
48Both of these options were unacceptable to Brown. He did not feel he could enrol in April without the accommodation in place and he was unwilling to start the process all over again in six or nine months because he would have to start all over again and overcome the same obstacles. He was confident everything could be in place in time to enrol in July.
49On these facts the only logical conclusion that can be drawn by the Tribunal is that Brown was unable to attend Trebas because the accommodation he required for his disability was not in place in time for him to enrol in the MBA program in April 2001 and his request to defer his enrolment was denied. Therefore, the Tribunal has no difficulty in concluding that Trebas discriminated against Brown on the basis of disability when it failed to take steps to eliminate the barriers that prevented Brown from enrolling at Trebas in April 2001 and when it refused to grant Brown’s request to defer his enrolment for a second time. Accordingly, a prima facie violation of the Code has been established.
Does Trebas Have a Legal Justification for Its Actions?
50Trebas asserts it cannot be compared to large educational institutions like George Brown College which has hundreds of employees and receives government funding so they can hire disability co-ordinators who provide assistance to disabled students like Brown. It further asserts the unexpected absence of a Director to oversee operations on a daily basis left the school in turmoil during the period of time that Brown was trying to enrol at Trebas.
51Both Trebas and Brandt maintain the one deferral-only policy was established because multiple deferrals generate paperwork and the school had difficulty tracking the deferrals it had granted in the past to foreign visa students.
52Although neither respondent referred directly to section 17 of the Code, the above submissions will be examined in the context of that provision which deals with the scope of the duty to accommodate an individual who suffers from a disability.
17 (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 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.
53Section 17 of the Code requires Trebas to take reasonable measures short of undue hardship to accommodate Brown’s disability. The onus is on Trebas to establish that it fulfilled the duty to accommodate Brown’s disability related needs. Further, as the duty to accommodate under section 17 is a defence to a finding of discrimination, this provision must be narrowly construed. (see: Zurich Insurance Co. v. Ontario (Human Rights Commission) (1992), 1992 CanLII 67 (SCC), 16 C.H.R.R. D/255 (S.C.C).
54The Supreme Court of Canada discussed the concept of reasonable accommodation in Central Okanagan School District No. 23 v. Renaud (1992) 1992 CanLII 81 (SCC), 95 D.L.R. (4th) 577 at page 585:
More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term “undue” infers that some hardship is acceptable; it is only “undue hardship” that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words “reasonable” and “short of undue hardship”. These are not independent criteria but are alternate ways of expressing the same concept. What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case.
55Finally, in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) Meiorin Grievance), 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, the Supreme Court of Canada held that where a rule or policy has an adverse effect on a prohibited ground, the rule will be upheld if it is established that the complainant was accommodated to the point of undue hardship.
56The evidence before the Tribunal is that the individuals at Trebas who dealt with Brown made little or no attempt to put in place the accommodation Brown required to enrol at Trebas. Nor did they demonstrate a willingness to assist him to do so. Instead, it was left to Brown to make all of the necessary arrangements even after Brandt and Bulmar became aware in early December 2000 that Brown was encountering difficulties arranging the accommodation and had to defer his January 2001 enrolment date for that reason. Bulmar was also aware that these problems were continuing in January and February 2001 and that the Bursary application remained incomplete in March because Brown was unable to obtain the required computer quotes.
57Trebas has not established that providing the type of assistance Brown required in order to obtain the computer quotes for the Bursary application and arranging for written course materials in alternate format constituted an undue hardship. For example, there is no evidence to suggest this type or level of assistance would have required Trebas to engage either the services of a disability co-ordinator or hire additional staff. What was required was recognition that Brown was not solely responsible for arranging this accommodation and that Trebas had a legal obligation to work with Brown to ensure the measures he required to accommodate his disability were in place in time for him to enrol.
58Further, the evidence before the Tribunal is that the Bursary provides up to $10,000.00 for various disability related expenses that may be a barrier to education. In Brown’s case, these expenses would include both the computer equipment and cost to prepare written course material in alternate format. Accordingly, Trebas did not have to bear these costs and there is no basis to conclude the accommodation Brown required constituted an undue financial hardship on Trebas.
59The fact that Brown required accommodation for his disability meant the one deferral-only policy had an adverse effect on him. There is nothing to suggest the failure to have the accommodation measures in place in a timely manner was due to a lack of effort or diligence on the part of Brown that is unrelated to his disability. The only reason Brown required either deferral was because the accommodation for his disability was not in place in time for him to enrol. The first deferral was routinely granted. The second deferral was denied on the basis of the one deferral-only policy even though Brandt thought Brown still wanted to attend Trebas and knew Brown was continuing to work on arranging the accommodation.
60There is no evidence that Brandt had the authority to waive the application of this policy or even considered such an option. More importantly, there is no evidence to support the conclusion it would have been an undue hardship for Trebas to waive the application of this policy in these unique circumstances. The evidence is that this policy was established because multiple deferrals create extra paperwork and the school had encountered difficulties tracking the deferrals it had previously granted to foreign visa students. However, the need to complete another enrolment agreement with Brown and place his name on the enrolment list for the next MBA program (whenever that might be) cannot by any measure be considered an undue hardship for Trebas.
61In short, Trebas could have, and should have, granted Brown’s request to defer his enrolment in April 2001, notwithstanding the existence of the one deferral-only policy, because Brown’s inability to enrol at Trebas was related to his disability and the need for accommodation to enrol at Trebas. Unfortunately, Leonard was not made aware of this situation so that he could intervene and provide direction to staff on the application of this policy in these circumstances.
62In conclusion, I find Trebas failed to reasonably accommodate Brown’s disability to the point of undue hardship. Therefore, Trebas has not established it has a defence or legal justification for contravening Brown’s right under section 9 of the Code to be free from discrimination on the basis of his disability.
Did Brandt Contravene the Code?
63At the hearing Trebas took the position that Brandt was not an employee but an independent contractor because he received commission on the revenue generated by the students he enrolled at Trebas.
64Brandt testified he was initially hired by Trebas in 1992 as an admissions counsellor. Eventually he was promoted to the position of Director of Admissions at which time he started receiving commission determined in accordance with a written agreement. He worked solely for Trebas between 1992 and March 2001. Brandt further testified and asserted that he was at all times acting within the scope of his employment duties in his dealings with Brown, including his decision to deny Brown’s request for a second deferral in April 2001 because of the one deferral-only policy.
65Based on the limited evidence before the Tribunal relevant to the issue of Brandt’s status the Tribunal finds that Brandt was an employee who, at all material times, was acting within the course of his employment duties in his dealings with Brown. Neither the fact that Brandt was paid on a commission basis nor the terms of the written commission agreement are sufficient to conclude that Brandt was an independent contractor and not an employee of Trebas.
66Brandt testified he denied Brown’s request for a second deferral solely because of the one deferral-only policy. The evidence before the Tribunal does not suggest otherwise. The fact that it was not in Brandt’s best interest to deny this request further supports his evidence and assertion that his decision to deny Brown’s request for another deferral was because of the policy. Brandt’s decision is also inconsistent with Tabarra’s request that she not be placed in the same class as Brown. There is also no evidence or assertion that Brandt had the authority to waive the application of this policy in this or any other circumstance. Such authority would be surprising because it could give rise to a conflict of interest by virtue of the manner in which Brandt is remunerated.
67This is not a situation where it can be said that Brandt was the directing mind of Trebas or engaged in an independent act of discrimination toward Brown. That being the case, the Tribunal finds that Brandt is not personally liable for the breach of Brown’s rights under the Code.
Remedy
68The Tribunal’s remedial powers are set out in s. 41 of the Code as follows:
- (1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,
(a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
69The Commission seeks the following Orders from the Tribunal:
(1) General damages in the amount of $25,000.00;
(2) $10,000.00 damages for mental anguish caused by wilful and reckless infringement of Brown’s rights under the Code;
(3) Pre and post judgment interest on the above amounts;
(4) An order directing Trebas to immediately cease and desist from applying the one deferral only policy in a manner which offends the Code;
(5) Order that Trebas shall, within 90 days of this decision, make all necessary inquiries to ensure that written materials for courses offered by Trebas can be made readily available in formats accessible to persons with visual disabilities;
(6) Order that Trebas designate a position in its corporate/administrative structure to have primary responsibility over dealing with and meeting the accommodation needs of students with disabilities;
(7) Order that Trebas ensure that the person(s) responsible for accommodation shall receive training in the principles of accommodating the disability-related needs of students receiving educational services;
(8) An order that the Tribunal remain seized with this matter for a period of time to deal with any issues arising from implementation of this award.
General Damages
70The purpose of awarding general damages is to compensate the complainant for the intrinsic value of the infringement of his rights. In Sanford v. Koop, 2005 HRTO 53 at para. 35, the Tribunal provided the following factors for assessing the appropriate quantum of general damages:
Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment
71Given the purpose of general damages is to compensate the complainant for the breach of his rights under the Code, the financial impact these damages will have on the party responsible for the contravention of the Code is not a factor to be considered by the Tribunal. (see: Shaw v. Levac Supply Ltd., (1991) 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd. Inq). Accordingly, Leonard’s testimony about the current financial state of Trebas is not a matter the Tribunal can consider when it determines the appropriate amount to award Brown for general damages.
72Brown testified about the impact not being able to attend Trebas had on him. He testified that when he was accepted for admittance he was encouraged but when he was unable to enrol in the MBA program he became frustrated, hurt and angry. He wanted to attend Trebas to be seen to be doing something with his life, to earn an income and contribute to the community. At the hearing he remained both frustrated and angry at being denied the opportunity to attend Trebas.
73I accept that Brown was hurt, frustrated and angry that he could not enrol in the MBA program at Trebas. Denying an individual like Brown, who has a disability, the right to improve his education and opportunity for advancement must be viewed seriously. Although the nature of the offensive treatment afforded Brown is more properly characterized as an act of omission not commission based on a complete failure to appreciate the obligations that exist under the Code on Trebas rather than one or more blatant acts of discrimination toward Brown the end result is the same. Brown’s right, under the Code, to be free from discrimination on the basis of his disability was contravened by Trebas.
74Although the Tribunal has determined that Trebas failed to discharge its legal obligation under the Code to accommodate Brown’s disability, the conduct of its employees toward Brown was not malicious or egregious given their initial understanding that Brown was willing to take primary responsibility for putting the accommodation he required in place. Nor does this case involve multiple or repeated violations of the Code. Finally, an award of general damages should not be punitive but, rather, should educate and eliminate future violations of the Code. In all the circumstances, I find Brown is entitled to general damages in the amount of $12,500.00.
Mental Anguish
75Under section 41(1)(b) the Tribunal can award up to $10,000.00 for mental anguish where “the infringement has been engaged in wilfully or recklessly” and results in the complainant suffering mental anguish. In Ketola v. Value Propane Inc. (No.2) [2002] O.H.R.B.I.D No. 14 (Ont. Bd. Inq.) the use of the words “wilfully” and “recklessly” in this section of the Code is discussed:
- The Divisional Court has defined “wilfully” to require both that the conduct be intentional and the infringement of the complainant’s rights be itself the purpose of the conduct: York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360 at 376. Professor Cumming, then sitting as an ad hoc Board, defined “recklessly” as conduct, which is “such as to evince disregard of or indifference to its consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly”, without regard for the possible injurious impact on the complainant: Cameron v. Nel-Gor Castle Nursing Home (1984), 5 C.H.R.R/ D/2170 at D/2198.
76In Fuller v. Daoud, [2001] O.H.R.B.I.D. No. 19 at para. 66, the Board of Inquiry found that mental anguish:
… suggests a relatively high degree of mental pain and distress. It is more than mere disappointment, angry feelings, worries, resentment or embarrassment. Yet, it necessarily includes all of the foregoing. It does, however, include mental sensation of pain resulting from painful emotions such as grief, severe disappoint[ment], indignation, wounded pride, shame, despair or public humiliation: (see Black's Law Dictionary, 6th ed.). Mental anguish is a subjective suffering that does not require medical proof.
77In this case the evidence does not support the conclusion that the behaviour attributable to Trebas meets the test of either wilful or reckless as those terms have been interpreted in the jurisprudence. Even the decision to deny Brown’s request for a second deferral cannot be characterized as being heedless or wanton given the presence of the one deferral-only policy which was established to respond to identifiable problems the school had previously encountered.
78I am also not satisfied the evidence establishes Brown had the type and degree of mental pain and suffering necessary to satisfy the second branch of subsection 41(1)(b) of the Code. Accordingly, I find the facts in this case do not support an award of damages for mental anguish.
Public Interest Remedies
79Public interest remedies should (i) promote compliance with the Code; (ii) reflect the facts of the case and the violation of the Code that the Tribunal has found; and (iii) be remedial, not punitive: Pchelkina v. Tomsons, 2007 HRTO 42 at paras. 33 and 34; Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 91. Applying these principles to the facts in this case the Tribunal finds the public interest remedies sought by the Commission are appropriate.
Interest
80Under s. 128 (1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre judgment interest runs from the “date the cause of action arose”. Based on the evidence, this cause of action arose when the decision was made to deny Brown’s request for a second deferral on March 26, 2001. Accordingly, prejudgment interest on the award of general damages is payable from March 26, 2001 and shall be calculated in accordance with section 128 of the Courts of Justice Act. Post judgment interest is payable pursuant to s. 129 of the Courts of Justice Act.
ORDER
81Having found that Trebas infringed Brown’s right to be free from discrimination with respect to his disability contrary to section 9 of the Code, the Tribunal orders as follows:
(1) Trebas Institute Ontario Inc. shall forthwith pay Delano Brown $12,500.00 in general damages together with pre judgment interest on this amount from March 26, 2001 to the date of this decision and post judgment interest from the date of this decision to the date of payment in accordance with the provisions of the Courts of Justice Act.
(2) Trebas Institute Ontario Inc. shall immediately cease and desist from applying the one deferral-only policy in a manner which offends the Code.
(3) Trebas Institute Ontario Inc. shall, within 90 days of this decision, make all necessary inquiries to ensure that written materials for courses offered by Trebas can be made readily available in formats accessible to persons with visual disabilities.
(4) Trebas Institute Ontario Inc. shall designate a position in its corporate/ administrative structure to have primary responsibility over dealing with and meeting the accommodation needs of students with disabilities.
(5) Trebas Institute Ontario Inc. shall ensure that the person(s) responsible for accommodation shall receive training in the principles of accommodating the disability-related needs of students receiving educational services.
(6) The Tribunal remains seized with this matter for a period 120 days to deal with any issues arising from implementation of this award.
Dated at Toronto, this 13th day of February, 2008.
“signed by”
Susan Serena
Member