Smolak v. 1636764 Ontario Ltd. o/a Mr. Sub, 2009 HRTO 1032

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Smolak

Applicant

-and-

1636764 Ontario Ltd. o/a Mr. Sub and Masoud Khandemi

Respondents

case Resolution Conference DECISION

Adjudicator: Sunil Kapur

Date: July 13, 2009

Citation: 2009 HRTO 1032

Indexed as: Smolak v. 1636764 Ontario

AppearanceS BY

Patricia Smolak, Applicant ) On her own behalf

1636764 Ontario Ltd. o/a Mr. Sub ) No one appearing and Masoud Khandemi, Respondents )

Introduction

1This Case Resolution Conference Decision (the “CRC decision”) involves an Application dated September 21, 2008 under s. 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) by Patricia Smolak (the “applicant”).

2The respondents, 1636764 Ontario Ltd. o/a Mr. Sub and Masoud Khandemi did not attend the CRC. Prior to commencing the CRC, I carefully reviewed all of the correspondence between the Tribunal and the respondents. Based on my review of the correspondence, I was satisfied that the respondents received notice and were aware that the CRC was to commence at 10:00 a.m. on June 25, 2009. The CRC commenced at 10:30 a.m.

3The issue before the Tribunal is whether the respondents discriminated against the applicant on the basis of her disability when they refused to allow her to enter the corporate respondent’s premises with her guide dog.

Evidence

4The applicant testified that on August 21, 2007, she and her friend Julie Flaczynski decided to have lunch at the corporate respondent’s restaurant. The applicant is visually impaired and uses a guide dog.

5The applicant stated that she did not get very far into the doorway of the restaurant before she was confronted by the personal respondent who refused to allow her guide dog into the restaurant and stated that dogs were not allowed into an establishment where food is served. The applicant stated the personal respondent said that allowing a dog into the restaurant would violate health department rules. She testified the personal respondent was raising his voice at her and would not listen to her as she tried to explain that the dog was a guide dog and that she needed the dog’s assistance.

6The two women left the restaurant. The applicant testified that the incident was quite shocking to her as she had never experienced this before. She stated that she was quite distressed by the interaction with the personal respondent. She did not suffer any loss of income or claim other special damages. As a remedy, the applicant stated that she wanted the respondents to be given the “maximum fine” permitted under the Code.

7Ms. Flaczynski’s evidence corroborated the applicant’s description of the events of August 21, 2007. She added that the personal respondent physically blocked them at the doorway into the restaurant.

8The applicant submitted a letter dated May 13, 2008 written to her by the personal respondent. In the letter, the personal respondent admits that the guide dog was denied entry into the restaurant but states it was not him but another employee who refused entry. In the letter the personal respondent apologizes on behalf of the employee and states that such an incident will not happen again.

Decision

9After considering all of the evidence before me, I find that the respondents discriminated against the applicant when they denied her guide dog entry into the restaurant.

10I accept the applicant’s evidence she found the incident quite distressing and felt “very rattled” and “very upset”. In the circumstances ,she is awarded $2,000.00 as monetary compensation for the loss arising out of the infringement of the Code and the injury to her dignity, feelings and self-respect. The respondents are jointly and severally liable to the applicant for this amount and shall make the payment to her within 30 days of the date of this CRC decision.

11Prejudgment interest is payable on the above amount from August 21, 2007 to the date of this CRC decision in accordance with the Courts of Justice Act. Post-judgement interest is payable on any amount not paid within 30 days of this CRC decision in accordance with the Courts of Justice Act.

12Additionally, I am satisfied the circumstances support an order to ensure future compliance with the Code. Within 30 days of the date of this CRC decision, the respondents shall obtain a copy of the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, available on its website http://www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2 (revised November 23, 2000) and shall post it so it is clearly visible to all employees employed at any Mr. Sub restaurants operated by the respondents.