LeNeve v. Point Edward Casino, 2008 HRTO 331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard LeNeve Applicant

-and-

Point Edward Casino Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil Date: December 2, 2008 Citation: 2008 HRTO 331 Indexed as: LeNeve v. Point Edward Casino

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on August 20, 2008. The Application alleges discrimination in the provision of goods, services and facilities on the ground of disability. Specifically, the applicant claims that the respondent Point Edward Casino (the “Casino”) refused to allow him to sit while playing at a dice table, an accommodation he requested because of a disability. In addition, the applicant claims that he was harassed and embarrassed by Casino management because of his need to sit. Finally, the applicant claims that the Casino’s practice in accommodating persons with disabilities is inconsistent in that some customers were permitted to sit while others were not, and the policy appeared to change depending on which manager was on duty.

2On October 24, 2008 the Tribunal issued an Interim Decision in this matter (2008 HRTO 187) requiring the respondent to file a Response to the Application no later than October 31, 2008, The respondent has not filed a Response and has not contacted the Tribunal. As a result, the Tribunal will proceed without the participation of the respondent.

3This decision disposes of certain aspects of the Application, and provides case assessment directions to the applicant in order that the Tribunal may finally dispose of the Application.

CONSEQUENCE OF FAILURE OF THE RESPONDENT TO COMPLY WITH THE TRIBUNAL’S RULES AND DIRECTION

4As noted in the October 24, 2008 decision, the Application was originally sent to the respondent by the Tribunal on September 10, 2008. The Notice of Application which accompanied the Application provided specific instructions to the respondent, referenced various information to assist the respondent in completing the Response, and indicated that a Response was due 35 days from the date of the Notice. The respondent failed to file a Response or otherwise contact the Tribunal. The correspondence sent to the respondent was not returned as undeliverable.

5The Tribunal’s practice in circumstances where a respondent fails to file a Response to an Application within 35 days is to issue a “no response” decision. A “no response” decision explains that an Application under the Code commences a legal proceeding against the respondent. The decision gives the respondent one week to file a Response and explain why a Response was not previously filed in accordance with the Tribunal’s Rules.

6The decision further cautions that failure to file a Response as directed will result in the Tribunal proceeding without further notice to the respondent, and the Tribunal may take additional steps under Rule 5.5. That Rule reads as follows:

Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal may take any of the other steps in Rule 5.5.

7The Tribunal sends the decision to the respondent by courier, as well as by fax and/or email, if that contact information is available.

8In the present case, the October 24, 2008 “no response” decision was sent to the respondent by fax on October 24, 2008. A transmission confirmation sheet indicates that the transmission was successfully completed at 2:12 pm. The decision was also sent by courier. Purolater Courier has confirmed that the decision was received and signed for at the respondent’s business location on October 27, 2008. In the circumstances, I am satisfied that the respondent has received notice of the Application and of these proceedings, but has chosen not to participate.

9Further, I find that it is appropriate to deem the respondent to have accepted all of the facts alleged in the Application, and to have waived any right to participate in these proceedings.

10The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.

11The procedures established by the Tribunal’s Rules provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an application. That application must be complete and set out the allegations which, in the applicant’s view, constitute a violation of the Code. Before serving an application on the person or organization named as a respondent, the Tribunal will review the application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.

12Once served with an application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its response. The response also provides a respondent with an opportunity to indicate which facts or allegations in the application are agreed to, and which are disputed.

13A respondent who refuses, or chooses not to file a response should not be able to frustrate the objects of the Code and the applicant’s right to assert a claim and seek a timely determination of that claim. Section 40 of the Code requires the Tribunal to dispose of applications in a way which will provide for “a fair, just and expeditious resolution of the merits of the application.” Where no response is filed, in order to fulfill this statutory mandate, the Tribunal will proceed to determine the application in the absence of the respondent. In all but the rarest of cases, the Tribunal will deem the respondent to have waived its right to participate pursuant to Rule 5.5(c) and deem the respondent to have accepted all of the allegations set out in the application pursuant to Rule 5.5(a).

14While Rule 5.5(d) permits the Tribunal to decide an application based only on the materials before it, the Tribunal will exercise this discretion only after providing the applicant an opportunity to file additional materials and make oral submissions. There are two reasons for this. First, the Rules do not require an applicant to submit all documents on which they may wish to rely upon when filing the application. The procedure contemplates that, prior to a hearing, the parties will exchange documents, may request orders for disclosure, and may submit additional materials they wish to rely upon to establish their respective cases.

15Second, section 43(2)1 of the Code provides that the Tribunal may not finally dispose of an application within its jurisdiction without first providing the parties an opportunity to make oral submissions. Therefore, unless this right is waived, an applicant must be provided with an opportunity to make submissions before the Tribunal finally determines the application.

16While the applicant has an opportunity to submit additional materials and documents and make oral submissions, he need not call evidence on the facts set out in his Application. Since I have found the respondent is deemed to have accepted the facts and allegations set out in the Application, I am prepared to treat those facts as uncontradicted evidence.

17To summarize, I find that it is appropriate to deem the respondent to have accepted all of the allegations set out in the Application, and to have waived any right to participate in these proceedings. As will be more fully set out below, the applicant will be provided an opportunity to file any documents or materials he may wish the Tribunal to consider, and will be provided an opportunity to make oral submissions before the Tribunal finally determines the Application.

BACKGROUND TO THE APPLICATION

18The applicant and his wife visited the Point Edward Casino as customers on July 10, 2008. At approximately 9:00 pm they were playing dice at one of the Casino’s tables. The applicant had his shoes off as he has foot problems which can cause pain in his feet, legs and back. A pit boss (who is identified in the Application as Joe) came up to the applicant and asked that he put his shoes on. The applicant complied but got a chair and sat down at the table.

19Shortly afterwards, Joe returned. He first spoke with another customer at the table who was also sitting. He then approached the applicant and told him that he was not permitted to sit at the dice table. The applicant asked why the other customer was allowed to sit. Joe indicated that the other customer had “back issues.” The applicant said that he too had “health issues” related to his feet, legs and back. Joe became agitated and in a loud voice told the applicant to put the chair away.

20The applicant complied but went to lodge a complaint at the customer service desk. He asked to speak with a manager. The service representatives initially refused but eventually the floor manager (identified as Troy) came to speak with the applicant. The applicant explained what had happened and explained that he had been embarrassed by the treatment he received from Joe. He told Troy that he considered the treatment to be “health discrimination” and harassment. He requested an apology from Joe and the right to use a chair while at the dice table. Troy initially refused. When the applicant indicated that he would take the issue up with “Mr. Bailey’s office”, Troy offered the applicant “a comp” and advised that he would be able to use a chair but would be required to stand while throwing the dice.

21On July 17, 2008 the applicant returned to the Casino. In accordance with the information he had been provided, he was sitting while at the dice table, though he stood while throwing the dice. As on the previous evening, another customer was also sitting. At approximately 10 pm, one of the pit bosses (identified as Dino) approached the table and told the applicant he could not sit. The applicant explained that he had been given permission to sit by the floor manager Troy, as well as the general manager. He also asked why the other customer was permitted to sit. Dino ignored the question.

22Approximately 10 minutes later another employee (identified as Marty) approached and told the applicant he was not permitted to sit. The applicant explained again that he was given permission by the other managers. Marty raised his voice and said that the other managers were not on duty and so he (the applicant) was not permitted to sit.

23Later, another employee approached the applicant and attempted to have him stand and remove the chair from the dice table. Again the applicant refused.

24At the end of the evening when the applicant was leaving, he was followed by a Casino employee from the dice table to the cashier. When he asked about a shuttle bus, he was told that there was none available.

25The applicant submitted with his Application a letter dated July 31, 2008 from Marc Colameco, Acting General Manager of the respondent, addressed to the applicant. The letter appears to indicate that the Casino now permits customers to use a chair while playing at the dice table. Mr. Colameco also indicates that he had not communicated the change in policy to floor employees. As such, the letter appears to confirm much of the alleged mistreatment the applicant experienced.

DECISION

26Based on the uncontradicted facts presented by the applicant, I find that the respondent has violated the Code.

27Section 11 of the Code provides:

(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).

Idem

(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.

28The applicant has stated that he has a disability which prevents him from standing for extended periods. The requirement that customers stand while playing dice is not a violation of the Code in itself, but had the effect of excluding or limiting the applicant’s ability to use the Casino facilities. There is no evidence before me that the requirement to stand at the dice table is reasonable or bona fide. As a result, I find that the policy infringed the right of the applicant.

29I also find on the facts before me that the applicant was demeaned and harassed by Casino employees because of his disability. Part of the treatment the applicant experienced appears to have resulted from an inconsistent application of the Casino’s policy that customers stand at the dice table. In addition, it appears that the Casino had inadequate or no training for employees on how to address disability related needs of its customers. The effect was that the Casino reacted in a rude, aggressive and inconsistent way towards the applicant, simply because he had particular disability related needs.

30I will defer addressing remedy until after the applicant has been given an opportunity to provide additional documents and make oral submissions. Therefore, I make the following order:

a. Within 3 weeks of this decision the applicant may submit any additional document he wishes the Tribunal to consider in making a remedial order;

b. At the same time, he shall indicate whether he wishes to make oral submissions before the Tribunal finally disposes of this Application and issues a remedial order. If he wishes to make oral submissions, the Tribunal will hear those submissions by telephone hearing unless the applicant provides reasons why it is necessary to hold an in person hearing;

c. If the applicant advises that he does not have additional documents to submit, or that he does not wish to make oral submissions, the Tribunal will proceed to finally determine the Application, including deciding the appropriate remedy, based only on the materials before the Tribunal that have been filed by the applicant.