Penny Schussler v. 1709043 Ontario Ltd. o/a Chan’s Chinese Buffet, 2009 HRTO 2194

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Penny Schussler

Applicant

-and-

1709043 Ontario Ltd. o/a Chan’s Chinese Buffet

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: December 17, 2009

Citation: 2009 HRTO 2194

Indexed as: Schussler v. 1709043 Ontario

1This Application was made on March 10, 2009 under Section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing was held on December 11, 2009.

2The applicant self-identifies as a person with epilepsy who uses a service dog. On November 28, 2007, the applicant attended at the respondent restaurant with her daughter and her service dog. The dog was wearing a harness used for public access. The applicant was carrying identification that clearly stated the dog was a service dog.

3The applicant was met at the door and seated at a table without any hesitation. The hostess was pleasant. The applicant visited the buffet with her service dog. A staff person approached her table and introduced himself as a manager and asked her not to bring the dog to the buffet table. He also asked why she used a service dog, as it appeared to him that she could see and said for public health reasons she could not bring the dog to the buffet. He suggested that staff or her daughter could serve her.

4The applicant then showed the staff person her identification as a person in need of a service dog and stated that the dog was entitled to be with her in all public places except an operating room.

5The staff person began to raise his voice, inquiring “what is your medical problem?” The applicant’s daughter finally responded that the applicant had epilepsy.

6The staff person refused to look at the identification and repeated that the applicant could not visit the buffet with the dog. He left the table abruptly, apparently very annoyed.

7As the applicant and her daughter left, the same staff person approached to explain that he hoped they understood his concern for public health. When her daughter asked if he would take the same approach for a service dog to a visually impaired person, the respondent replied “of course not. That would be different, but your mother can see.”

8The applicant agreed that the hostess and staff person were very pleasant and polite.

9Two witnesses appeared on behalf of the respondent. A staff person who provided water to the table testified that he saw the manger speaking to the applicant but did not hear anything. The vice-president testified about his understanding based on the manager’s report to him. The manager did not testify and when I asked why, the vice-president testified that he was too busy managing two restaurants.

10In a letter dated April 6, 2009, the respondent stated that the manager tried to ask the applicant not to bring the guide dog to the buffet because some people may have an allergy to animal’s hair or fear animals. However, he did not prevent her from returning to the buffet.

11On balance, I prefer the evidence of the applicant over the evidence of the respondent’s witnesses. The applicant had a clear reason to remember the events and testified in person. The manager did not attend, and I heard his evidence second hand through the vice-president. On the respondent’s own evidence, the applicant was asked not to bring the dog to the buffet table.

12The refusal to permit the applicant to use her service dog to serve herself at the buffet amounts to discrimination on the basis of disability in the provision of a service, contrary to sections 1 and 9 of the Code.

13The respondent has not established any defence, as they agreed that they would permit a service animal for a visually impaired person to visit the table. Therefore, the alleged public health concern was not established.

14The applicant sought $50,000 in compensation plus a clear policy on the use of service dogs.

15The applicant testified about her upset over the events. Having regard to her evidence and the considerations to be applied when assessing awards for the injury to dignity and self-respect as set out in Sanford v. Koop, 2005 HRTO 53, I am satisfied an award of monetary compensation in the amount of $500.00 is appropriate.

16I also direct that the respondent develop a written policy on the accommodation of persons with disabilities, including the treatment of persons using service dogs. The respondent should consult the Accessibility Directorate of Ontario, www.accesson.ca, and the Ontario Human Rights Commission, www.ohrc.ca, for information about accessibility and accommodation of persons with disabilities. That written policy shall be delivered to the applicant and brought to the attention of the staff of the respondent within three months of the date of this Decision.

Order

17The respondent is ordered to pay to the applicant:

a) $500.00 as monetary compensation for the breach of the Code; and

b) post-judgment interest on the above at the applicable rate under the Courts of Justice Act commencing 30 days from the date of this Decision.

18The respondent shall deliver to the applicant a written policy on the accommodation of persons with disabilities, including the use of service dogs, within three months of the date of this Decision.