HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruby Donnelly

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

1531315 Ontario Ltd. o/a Spinz Coin Laundries, Gino Costabile and Angela Costabile

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: June 4, 2009

Citation: 2009 HRTO 754

Indexed As: Donnelly v. Spinz Coin Laundries

AppearanceS BY

Ruby Donnelly, Complainant ) On Her Own Behalf

) Folarin Obikoya,

Ontario Human Rights Commission ) Monmi Goswami, and

) Christine Elwell,

) Counsel

1531315 Ontario Ltd. o/a Spinz Coin Laundries, ) Gino Costabile

Respondent )

Gino Costabile, Respondent ) On His Own Behalf

Angela Costabile, Respondent ) On Her Own Behalf

INTRODUCTION

1The complainant, Ruby Donnelly, uses a motorized scooter. She filed a complaint with the Ontario Human Rights Commission (the “Commission”), dated December 15, 2006, alleging that she was subjected to discrimination in services on the basis of disability when she was asked to move her scooter outside, and then to leave and not return, while attending the respondent Laundromat. The complaint alleges a contravention of sections 1 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Commission referred the complaint to the Tribunal by letter dated April 16, 2008, naming Spinz Coin Laundries, Mr. Gino Costabile and Ms. Angela Costabile as respondents.

2The personal respondent, Gino Costabile, is the owner of a numbered company, 1531315 Ontario Limited, which operates a Laundromat, Spinz Coin Laundries (“Spinz”). The personal respondent, Angela Costabile, is the spouse of Gino Costabile and works with him in the operation of Spinz. At the hearing, the style of cause was amended to reflect the proper name of the corporate respondent.

3The complainant alleges that on November 13, 2006, she attended Spinz with her motorized scooter. She alleges that Gino Costabile spoke pleasantly to her but when he noticed her scooter his attitude changed and he told her that her scooter was “wrecking his machines and ruining his floors”. She alleges that he demanded that she remove her scooter or he would do it himself. She explains that she told him that if he touched either her or her scooter, he would be charged.

4The complainant alleges that on November 20, 2006, she again attended Spinz with her scooter and was immediately approached by Angela Costabile who told her that she was going to “make” the complainant leave the premises. She alleges that Angela Costabile said that she spoke to the police who said that the scooter was a vehicle and not allowed inside and that the complainant could be charged with trespassing if she came back. She states Angela Costabile then shut off the power to the machines she was using. The complainant states that, in order to finish her laundry, she was forced to park her scooter outside and walk up and down the ramp to the Laundromat which caused severe pain.

5In their pleadings, the respondents allege that, on November 13, 2006, Gino Costabile became aware of the complainant’s practice of parking her scooter at the end of a bank of washing machines, which obstructed both the entrance and exit of other patrons, while she moved about the Laundromat freely on foot. He alleges that he attempted to discuss the situation of using the Laundromat as a “parking garage” and her behaviour became confrontational and disrespectful. He explains that the complainant was advised to take her business elsewhere. He denies telling the complainant that her scooter was wrecking the machines or floors.

6The respondents allege that on November 20, 2006, Angela Costabile greeted the complainant and, immediately, the complainant became aggressive and confrontational. The respondents allege that the complainant refused to remove her laundry and go elsewhere, stating, “I’ll do what I want!” Angela Costabile then turned off the power to the equipment the complainant was using and the complainant moved her scooter outside. She completed her laundry and did not return.

Summary of Evidence

7The complainant and the two personal respondents gave evidence at the hearing. There were no other witnesses. A number of documents and photographs and a digital video recording from security cameras in the respondent Laundromat were entered as exhibits at the hearing and were carefully reviewed by the Tribunal.

Background

8The complainant, Ruby Donnelly, testified that she is a senior citizen, who resides in Oakville, Ontario.

Medical Condition

9The complainant testified that she is in constant pain and it’s getting worse all the time but she manages to still not require a full-time caregiver. She explained that she is limited in what she can do in a lot of ways. The complainant testified that she has a “smashed up back” which she got in an industrial accident. She also testified that she has kidney and liver problems and diabetes.

10The complainant explained that she has been under medical help for about twenty years. She went from not being able to get out of bed at all to learning to walk, going from a cane, to a walker and then to a scooter. It took her close to two years to learn how to walk. She started by learning to crawl and then walk again.

Medical Note

11Early on the first day of the hearing, the Commission sought introduction of a medical note. The respondents objected based on timeliness, submitting that they were provided with the note in question at about 9:50 a.m., just prior to the commencement of the hearing on Tuesday, October 14, 2008. Mr. Costabile submitted that the Commission previously advised it would not be filing documentary evidence but he then received a call from Commission counsel on Friday, October 10, 2008, prior to the long weekend, indicating that the Commission now had a medical note.

12In response, the Commission submitted that in pleadings dated June 23, 2008, at paragraph 7, the Commission asserted that, as a result of poor circulation, related to diabetes, it became increasingly painful for the complainant to walk and, as a result, she underwent a medical assessment whereby it was determined that she required the use of a motorized scooter. The Commission submitted that the medical note said nothing new and, despite the late disclosure, the respondents would not be prejudiced by allowing it in.

13The medical note, dated October 9, 2008, signed by the complainant’s doctor, stated, in part, that the complainant suffers from multiple medical problems which have resulted in her suffering from significant mobility impairment. It also states that she was assessed in March 2006 by an occupational therapist, found to be markedly disabled and qualified for a scooter.

14Mr. Costabile submitted that, had he received the medical note earlier, he would have sought his own medical advice. When asked by the Tribunal if he required an adjournment, Mr. Costabile submitted that he was not in a position to adjourn, that he wasn’t going to delay the proceedings, and that he would like to get through them.

15Ultimately, the parties agreed that the document could be admitted, subject to the parties’ ability to make submissions at the end of the hearing regarding what weight, if any, should be given to the document, including having regard to any prejudice that could result from its admission.

16The complainant was shown the note in question. She testified that it had been recommended that she be fitted for a body cast which is something she would not do. The next alternative was to get a scooter, so that she “wouldn’t have to live in one of those independent living places.” She testified that she was assessed for a scooter in the late winter or early spring of 2006 and got one. She testified that the doctor can start the process but it is up to the “physio”. She added that the person who assessed her is the person named by her doctor in the note.

Spinz

17The complainant testified that she began doing laundry at Spinz in the fall of 2005. She said that there are three laundromats in Oakville that she knows about and that she chose to do her laundry at Spinz because it was the only one with a ramp once she got the scooter. She also testified that she had first attended another laundromat when she was using a “walker” and, because of steep steps, she had to go in and ask for help. She said that she did that twice and they said they were closing sooner, she was getting there around 9:00 p.m., and they didn’t want her to come in because they were closing. She explained that she was directed to Spinz and when she went to Spinz it was easy for her to go up the ramp. She stated that the first laundromat is no longer accessible for her. She testified that she was aware of a third laundromat but she was told lots of young men were hanging out there, and she did not feel safe.

18Ms. Costabile testified that there are two other laundromats in the neighbourhood of Spinz, both of which are accessible, clean and well maintained. The closest one has an entrance at street level and the other has a ramp. Ms. Costabile said that she has seen seniors, scooters, and children in the other two laundromats, but has not seen rowdy men standing outside the first, or disorderly conduct at the second laundromat. She testified that she has attended the other laundromats and someone is there at all times during the hours that they are open, whereas Spinz is unattended and there is nobody representing Spinz on a regular basis.

First visit to Spinz

19The complainant testified that on her first visit to Spinz she put coins in a soap machine, but did not get soap. She testified that an older woman said to her that when her daughter (Angela Costabile) got there, “she could reimburse you.” When Ms. Costabile arrived, her mother said to her that the complainant had lost money and the complainant explained why. Mr. Costabile then went into the back of the Laundromat, came out and said to the complainant that “it doesn’t show on the video” and “you are trying to steal 75 cents from us.” The complainant said that “if [she] was going to get a criminal record it would be for something more than 75 cents.” She said that she didn’t care what was on his video and that she wanted 75 cents back. She testified that Mr. Costabile came out and threw 75 cents at her. After that, every time she came in, she told them that it was her character they were defaming and that she didn’t want them ever to treat her like that again, unless they wanted to take it to the Supreme Court of Canada.

20The complainant also added that every time she came in, they came over to her. She testified that Ms. Costabile was always very nice and always chatted. Mr. Costabile would show her new video scanners and washers and dryers he had fixed. The complainant explained that she did not have her scooter at the time, but was walking with a “push buggy” that her son had reinforced. She explained that this was something to hold on to and she cannot carry heavy weight, over five pounds.

21Mr. Costabile testified that the complainant started to attend Spinz in or around March 2006. He confirmed that his first contact with the complainant involved the issue with the soap dispenser. He explained that the respondents’ policy has always been to protect themselves with video whenever anyone claims a loss from a washing machine, dryer, change machine or soap machine, as people make false claims. Upon arrival he was informed by his mother-in-law that there was an issue with the complainant putting in coins and not receiving soap. The complainant was informed that they didn’t have an issue with a refund but he would need to access the video first. Mr. Costabile testified that, in the interim, the complainant became very hostile, rude and confrontational. She received her refund but he was amazed at her attitude. He denied throwing it at her.

22Mr. Costabile testified that they clean every day but on Monday mornings the machines are serviced and the Laundromat is cleaned, without exception. He stated that the complainant continued to attend on a regular basis on Monday mornings and they encountered her on numerous occasions. He testified that they would greet her and stay out of her way. The complainant had constant complaints, such as the Laundromat being too hot or too cold or the change machine being out of change. When he had a couple of dryers that were not functioning and waiting to be serviced, she told him that, as an owner, he should be more responsible as she wanted to use those dryers, although other dryers were available. He tried to reason with her that she could use any of the dryers but she wouldn’t let the issue go. He stated he was a bit confused as to why she would carry on this way and it got to the point that you could not say “hello” to the complainant without being “snapped” at. He denied having any conversations with the complainant where he showed her the installation of the new video cameras or repaired machines.

23Mr. Costabile testified that, prior to November 13, 2006, whenever he saw the complainant, she had a “pull cart” which he described as one of those small shopping carts you pull behind you. He said that she used it for her laundry and that she always pulled it and didn’t use it for support. She never came in with a cane. He testified that she walked quite briskly for someone her age and did not appear to have any disability issues.

24Ms. Costabile testified that she attends Spinz every day, usually in the morning, and that a large, regular cleaning is done only on Mondays. She thought the complainant had been coming to Spinz since around March of 2006, but said she could be off by a month or two. She saw the complainant on a regular basis on their cleaning day. She could see the complainant coming if she was looking out the window or on the patio. She did not see a mobility problem and never saw a cane.

25Ms. Costabile testified that on the first day the complainant attended Spinz she was confrontational. Ms. Costabile walked in and her mother told her the complainant had lost money in the soap machine so she asked the complainant what happened and she was very confrontational. She demanded 75 cents. Ms. Costabile told her that they needed to check their video first and the complainant asked if she was calling her liar. Ms. Costabile explained their policy that they check first and told the complainant that she didn’t mean to imply that she was a liar. Ms. Costabile testified that Mr. Costabile gave the complainant her money, that he did not throw it at her, and that he placed it on the table below the soap dispensing machine.

26Ms. Costabile testified that, subsequently, she knew to keep her interaction limited. She would greet the complainant like everybody else and go about her business, even thought the complainant would always have a little complaint or “dig”, like “that spot over there is really dirty”, “are you going to move soon I need to fold my laundry”, or “I’m making you rich because I warm up the dryers before I put in my laundry”. The minute her mother would tell her that the complainant was coming she would move out of the way of where the complainant would need to be, such as near the washing machines, because she did not want to have a confrontation. She denied telling the complainant on a warm day that she would turn on the air conditioning for her, as the complainant testified, and denied having pleasant conversations with the complainant. Ms. Costabile described one incident when she was cleaning dryers and the complainant confronted her telling her that she was going to have to pay for her triple bypass surgery. Ms. Costabile asked why and the complainant said that when Ms. Costabile came up the stairs and said “hi” she startled her and she jumped. Ms. Costabile said that she was sure that complainant was not joking and she never said “hello” again.

Fall 2006

27The complainant testified that she began using her scooter at Spinz in September 2006. When asked where she parked her scooter she explained that when she came in, by “the first set of washers in a bit”, she “backed it into a little sort of alcove or corner.” She clarified that when she came up and in the door, she turned left to face the west wall and backed into a little nook, stepping off on the south side. She explained that it is a very small building with two rows in the centre. She explained that when parked there, there is a walkway down between the washers and patrons can get in around back of her to the larger washers. She stated that she was not in the way of the dryers which were one row over and that people could get by to go to the washroom.

28The complainant said that she didn’t want to be disturbing anything or be trouble or a bother to anybody. She was very aware that she would probably get a reaction from some people about it. She had gone different times to make sure not many people were in the Laundromat and decided to go on Monday mornings.

29She said that if she blocked the line of washers and somebody else came in, she would feel bad, so she parked the scooter, used a cane and leaned on the washing machines. She explained that she could go with her cane and sit down on the bench until it was time to change the laundry. They have carts that she could rely on and she used their carts to go to the dryer. She also explained that there is a table running along the wall and a bench on the south wall, in front of the window and she could fold there, leaning against the table. When she wanted to put her clothes away, she could sit down on the bench and load stuff on the “chair” so she didn’t have to carry it.

30When asked why she did not park her scooter outside, the complainant testified that it has gel batteries and that, if it gets cold, the batteries seize. She testified that she was told when she got the chair that the batteries seize and that is not something they replace. Also, if the scooter gets wet or cold, it will stop.

31When asked about the respondents’ policy with respect to push carts, the complainant testified that she was told that they didn’t allow anything in – push carts or anything else. However, she said that many times there were so many parked that you couldn’t even open the washing machine doors. She said that there was always stuff parked in there between washing machines. She said that the respondents have two or three of their own but said that no other buggies were allowed in and that is why her scooter was not allowed in but the place is always loaded with things like that.

November 13, 2006

32The complainant testified that on November 13, 2006, she came in, parked her scooter, got off using her cane, and leaned on the laundry machines. She was finished putting clothes in the machines, her washing was almost done and she had sat down on a bench. Mr. Costabile came over and spoke pleasantly. When he turned to go, he saw the scooter and asked her very aggressively if she knew whose “chair” it was and if it was hers. She said “yes” and he grabbed the arm of the scooter and started shaking it and told her that she had to take it outside or he would push it outside. He said it was going to ruin his floors and wreck his machines.

33The complainant said it didn’t wreck her floors or harm anything, she had been going to Spinz since September, he hadn’t noticed any damage to his machines and she had not been going up and down the machines with it.

34She then testified that Mr. Costabile grabbed the scooter by the arm, shook it back and forth quite violently and broke the arm. The complainant testified that Mr. Costabile “lost it” and was screaming at her. She felt intimidated and because she was there by herself she thought she would let it go. Mr. Costabile then came around and she said, “if you touch me you will be charged with assault.” He went back around the machines and made “threats” and said he was going to get the cops and put her out and she wouldn’t be let back in. He “went on” and she ignored it. She felt threatened, vulnerable and intimidated but she was taking clothes out and putting them in the dryer and thought that maybe if she did not respond he would be quiet and go away. But he kept it up until she left. When asked how long the aggression went on for, the complainant testified, for the whole time she did the laundry, probably about an hour and a half.

35When asked if she ever told Mr. Costabile that she needed the chair, the complainant testified that she told him the whole purpose of the scooter. Also, Ms. Costabile had commented that it must have exhausted her to walk up and down in the summer and she turned the air conditioning on for her one day. When asked if she ever told the respondents that she needed the chair for medical reasons, she said that she did not tell them that she was going to get the scooter because the requirements are so stringent and she wasn’t sure if she was going to get it because you have to be almost totally disabled. She didn’t want to say something and then not get it. It didn’t come up until Mr. Costabile saw the chair. When again asked if she told Mr. Costabile why she needed the chair, she said, “there’s a medical reason and I thought that I took care of his concerns about the floor and the machines but there was nothing.”

36On cross-examination, the complainant testified that on November 13, 2006, Mr. Costabile did not tell her to take her business elsewhere but told her to take her scooter outside. She also testified that the reason Mr. Costabile gave her was that he did not allow any buggies or scooters and it was ruining his floors and machines, not that it was blocking access. She also testified that she always attended on Mondays around the same time, unless she had a medical appointment, then she would have gone on another day. After she got her scooter, she never attended without it and she always parked it in the Laundromat, but she didn’t see Mr. Costabile until November 13, 2006.

37Mr. Costabile testified that when he arrived at the Laundromat on November 13, 2006, he saw a large motorized scooter at the front door. He could see it without having to open the door. He stated that it blocked the entire doorway. He entered and looked around to see if there were any customers. He saw the complainant seated to the left with her back towards the window, facing the folding table. He said “hello” to the complainant and asked her if she knew who left the scooter. She said that it was hers. He asked her when she got it and her response was that she just got it. He testified that he asked her if she could do him a favour and move it from where it was positioned and said to her that it was a hazard for people trying to get in and a fire hazard for people trying to get out. Immediately, she turned and said, “no I will not.” Mr. Costabile testified that he attempted to reason with the complainant and told her it was a hazard, violating the fire code, blocking the access door, if customers wanted to get in they couldn’t and if there was a random inspection it would be an issue for the fire department. He again asked her to move it and said to her that she could even put it outside on the porch, just outside the door. She refused and went into a rant. Mr. Costabile testified that, at this point, he had gone towards a large washing machine in the back and was nowhere near her. He testified that he never touched her scooter.

38Mr. Costabile testified that the complainant continued to say that she wouldn’t move the scooter or put it outside as it cost her five thousand dollars and she wouldn’t have it stolen. He told her that she couldn’t leave it where it was. He said that she could put it on the porch, she could chain it to the railing or put it on the ramp where she could view it. The complainant said she wouldn’t and turned her back and wouldn’t engage with Mr. Costabile. He proceeded to tell her that the Laundromat wasn’t a parking lot and that he has customers that come in with high end bicycles and they’re not permitted to bring them inside.

39Mr. Costabile testified that the complainant was becoming increasingly aggressive, said that she wouldn’t be bullied and that he was used to bullying people. She stated that if he touched her chair she would call the police and have him charged with assault. He reiterated that he never touched her chair. He testified that the complainant again threatened to call the police and have him charged with assault. At that point, he told her that he was going to give her ten minutes to move her scooter from in front of the access door and, if she didn’t move it, he would. He reminded her that she was no longer welcome as a customer in the Laundromat. He testified that he told the complainant that once she was finished her laundry, she could take her business elsewhere.

40Mr. Costabile testified that once the complainant threatened to have him charged with assault, she was no longer welcome in the Laundromat, he viewed her as a dangerous individual, and he could not have her in the Laundromat. He stated that if “she could make this type of dangerous allegation, what else is she capable of doing?” He went to a hardware store and when he came back to the Laundromat the complainant was gone.

41Mr. Costabile testified that he had been to the Laundromat on numerous Mondays between September 11 and November 13, 2006, and that he had run into the complainant on numerous occasions on those Mondays and she never came in with a cane, motorized scooter, or any other device. She moved around freely and uninhibited. He emphatically disagreed that the complainant attended eleven consecutive Mondays and that she had been coming with a scooter.

42Mr. Costabile spoke to Ms. Costabile about the incident with the complainant on November 13, 2006. He stated it was very clear to Ms. Costabile that he had made it very clear to the complainant that she was no longer welcome and was to take her business elsewhere. He testified that the request to move the scooter was a public safety issue but the threat of calling the police for assault was the reason for asking her not to come back. He stated that it had nothing to do with the scooter or disability.

43Mr. Costabile added that there was no damage to the machines or the floors, that scooters don’t damage the floors, and that the Laundromat was designed for scooters with the ramp and “handicapped” bathroom. He stated that the claim they don’t permit motorized scooters is completely without merit.

44Mr. Costabile testified that the respondents’ policy has never been that you can’t bring carts or strollers into their Laundromat and that they have people that come in with motorized scooters and strollers. He said that no one has left their item simply unattended, parked and blocking the door.

45He explained that he has had customers bring shopping carts in from a grocery store and he has moved them himself, explaining that they would be an obstruction in order to get out in case of a fire. If the customer is there, he asks them to remove it or, if not, he simply rolls it down the ramp and puts it by a planter by the respondents’ property.

46He stated that he has had to ask people to leave, including people who sat across the tops of the machines, people who wouldn’t abide by their policies, such as not dying clothes in the machines, and people with rambunctious children who were screaming and bouncing around, after being asked to settle down. People with problematic children have been told to monitor their children better or leave them at home, including a couple of children who would come in and literally just scream and twelve and thirteen year olds who were running across the tops of the machines.

47Mr. Costabile testified that other customers have come on motorized scooters and remained on the scooters or parked them on the porch just outside. No others have been positioned blocking the doorway. He stated they have had customers with limited mobility who left their scooter outside and he has invited them to stay on their scooter inside.

48On cross-examination, Mr. Costabile was asked if he asked the complainant to move her scooter somewhere else in the Laundromat and he responded, “repeatedly.” When asked where, he said anywhere else not impeding the means of egress. It was put to Mr. Costabile that, at paragraph 14 of the respondents’ pleadings, it states, “he advised her that if she refused to move the obstruction from the doorway he would remove the scooter from inside the premises.” He testified that, preceding that, he asked the complainant to move her scooter from in front of the door. He said he asked her to move it to another location, she refused, and he told her if she failed to move it within ten minutes he would remove it. When asked about the apparent inconsistency between his evidence and paragraph 14 of the respondents’ pleadings, Mr. Costabile stated that he and Ms. Costabile prepared the pleadings, that it was a summary of events in response to the Commission’s brief and that it wasn’t a statement of his. He reiterated that he asked her to please move the scooter somewhere else other than in front of the door. When asked if he provided any suggestions he answered that he meant anywhere in the Laundromat and when she didn’t take him up on that he suggested out on the porch. When she brought up theft, he suggested on the ramp where she could see it. He agreed he told her to take the scooter out, but after the complainant wouldn’t abide by his request to move it from in front of the door.

49Ms. Costabile testified that she first became aware of the incident on November 13, 2006, on that day, when Mr. Costabile telephoned her. He described the complainant and she knew who he was talking about. He asked her if she had seen her lately and she said “yes”. He asked her when and she said on a Monday. He asked her if she noticed she had a scooter and she said “no”. Ms. Costabile told Mr. Costabile that the complainant never came in with a scooter and she was just there on Monday. Ms. Costabile testified that Mr. Costabile told her about the interaction and said that he requested that she move the scooter and that she was ranting, threatening him not to grab it, and threatened to call the police. He said that he didn’t want her back in the Laundromat. Ms. Costabile confirmed that Mr. Costabile told her that he had informed the complainant that she was no longer welcome in the Laundromat. He instructed Ms. Costabile to not allow her access to the Laundromat anymore. She testified the main reason was because she had threatened Mr. Costabile, so she didn’t have any problem.

November 20, 2006

50With respect to her attendance at Spinz on November 20, 2006, the complainant testified that she planned to do laundry at Spinz that day, because she felt she made it clear about discrimination, the respondents couldn’t prevent her from coming in and neither she nor her scooter could be attacked.

51The complainant testified that both of the personal respondents were there and it appeared that both were waiting for her. It was early morning, somewhere between 9:00 and 11:00. Nobody else was there when she arrived. Ms. Costabile approached her and told her she couldn’t do her laundry but she was already putting it in the machines. Ms. Costabile told her she was lucky Mr. Costabile was busy the week before and couldn’t finish talking. They were both standing behind the big washers on the other side of where she was and talking and whispering. Ms. Costabile came around to talk to her. The complainant went into the same explanation, that she needed the scooter, that it was necessary, that it did no damage to floors or machines - proof being she had already been there a few months before.

52The complainant testified that she couldn’t see any reason for an absolute, what was to her, “hatred” - such a violent response to such a simple thing. She didn’t see that it was necessary to get carried away. Ms. Costabile continued to say that she had to put her scooter out or she wasn’t getting her laundry done that day. The complainant testified that Mr. and Ms. Costabile were discussing by themselves, and Ms. Costabile came around and talked to her and Ms. Costabile basically said the same thing that Mr. Costabile said.

53The complainant said that she needed the scooter and that it was discrimination. She explained that she parked it so that they couldn’t say that she was holding up anyone else. But Ms. Costabile told her that she had to take the scooter outside or she wouldn’t be able to do her laundry and also, she was going to call the police. The complainant said that she would like Ms. Costabile to call the police because the situation might be explained and it would be explained once and for all. The complainant said that with Ms. Costabile she felt more bewildered and upset because she had also talked with her nicely and was always very professional and pleasant.

54Ms. Costabile made a phone call to somebody, came back and said she called the police and was told that the scooter was a machine and she had the right to put the complainant out and charge her with trespassing. The complainant told Ms. Costabile that she didn’t believe her. Ms. Costabile said the police said she could turn her washing machine off. Ms. Costabile went downstairs and did something to make the machines stop.

55The complainant explained again why her scooter could not be put outside as, if there were problems, she couldn’t get home. She also explained that because the washing machine wouldn’t open with water in it, Ms. Costabile was, in effect, stealing her clothes. Ms. Costabile said that if she would like to get her clothes back she had to put her scooter out. The complainant was doing clothes for her son that day. There were three items in there he needed for that evening. With a real sort of panic, she agreed to put the scooter at the halfway level on the ramp so she could still watch it. Walking up the ramp is something she cannot do and she felt she was going to pass out. The complainant testified it seemed it was the only way she was going to get her clothes back because Ms. Costabile was literally holding them hostage. Ms. Costabile turned the washing machines back on when the scooter was outside.

56The complainant testified that she was very, very distressed and concerned as she was being blackmailed and, second, she was going to have to come up the ramp and didn’t know how she was going to get her clothes back to the scooter. She sat down and was so upset she wanted to cry but didn’t want to cry in front of people. She sat with her head down and told herself, “don’t cry, you can get through it, just dry your clothes.” She was going to find out whether something could be done about it.

57She testified that she was worried about her scooter because the week before, four were stolen in Toronto and she couldn’t figure out how she was going to get home if that happened. Also, it was a cold day and she was worried about the batteries. The scooter was only out for as long as the laundry and drying of the clothes took, which she only did for thirty minutes. She struggled quite a bit getting clothes out to the scooter. She went home and the scooter stopped on her three or four times. It was very cold for her. When she got home, the scooter was “out of commission” for two or three days and she spent three days in bed because of stress and lugging the laundry outside which she described as exhausting and strenuous.

58On cross-examination, the complainant testified that on November 20, 2006, she had a cane and used it for stability. When asked if she was reminded by Ms. Costabile to take her business elsewhere, she said “no”. When asked if Ms. Costabile said please don’t load your machines, she agreed that Ms. Costabile said something to that effect, after she had loaded her machines. She stated that, after the machines were turned back on, Ms. Costabile said she should take her business elsewhere. When asked how many times she walked up and down the ramp on November 20, 2006, she stated that she walked up the ramp from the scooter and then down the ramp to get it and that it exhausted her.

59On cross-examination, the complainant was shown a photograph (Exhibit 9-“o”) of a scooter parked in the location that she testified she parked her scooter at the Laundromat. The complainant agreed that this other scooter appeared to be parked as close to the washing machines as possible, whereas the complainant parked her scooter two or three inches away from the washing machines, or two or three inches closer to the front door.

60Mr. Costabile testified that he wasn’t at the Laundromat on November 20, 2006, when the complainant arrived. He stated that he arrived some 54 minutes after the complainant. She entered at 10:42 a.m. and he entered at 11:36 a.m. He didn’t communicate with the complainant and he went nowhere near her. He stayed for some 36 minutes and had no contact with the complainant. He stated that the video speaks for itself. He testified that Ms. Costabile did contact him and it was at his direction that the complainant’s machines were shut off. Mr. Costabile referred to a report from Environment Canada (Exhibit 5) indicating that the temperature at noon on November 20, 2006, at Pearson International Airport was 0.2 degrees Celsius.

61Ms. Costabile testified that on November 20, 2006, contrary to the complainant’s evidence, Mr. Costabile was not in the Laundromat when the complainant arrived, but was “at work". She later left to pick him up at the train station.

62When the complainant entered, Ms. Costabile was downstairs and saw her on video. The complainant said to Ms. Costabile that she checked with the manager and she could keep her machine “right here”. Ms. Costabile said to the complainant that she knew what happened because she spoke to her husband and she asked the complainant to please take her business elsewhere. Ms. Costabile testified that the complainant said, “no, I won’t, I can do what I wan’t” and “your not going to bully me.” At the same time, the compIainant was loading the machines with her laundry which was in bags on her scooter. Ms. Costabile was pleading with her to stop loading the machines. The complainant said that she could come to Spinz if she wants. Ms. Costabile testified that she was in shock and that she didn’t know what to do as the complainant was not listening to her and was loading the machines. Ms. Costabile then contacted Mr. Costabile who told her that if the complainant doesn’t stop loading the machines, turn off the machines. Ms. Costabile then told the complainant to please stop loading or she’ll turn off the machines. Ms. Costabile testified that the complainant said, “you’re not going to stop me.” Ms. Costabile did not say anything about the scooter.

63Ms. Costabile testified that she went downstairs, was completely frustrated and called the police to inquire if turning off the machines was something she could do. She told the person on the phone what happened with her husband the week prior and he instructed her not to allow the complainant in their establishment, said she could refuse service to anyone who she didn’t want in her establishment and that she could have her charged with trespassing if she informed her of that and she came back. Ms. Costabile went upstairs and told the complainant what she was told by the police. At some point, she turned off the machines.

64At some point, Ms. Costabile’s mother was finishing cleaning, went to put a carpet down but it wouldn’t fit because of the scooter. The complainant pushed her scooter to the folding table by the change machine. Neither Ms. Costabile nor her mother asked the complainant to move her scooter. Ms. Costabile then needed access to the change machine to fill it. She asked the complainant to move her scooter because she needed to get to the change machine and the complainant refused.

65Ms. Costabile testified that she did not ask the complainant to put her scooter outside, nor did she suggest that she would turn the machines back on if the complainant did so. At some point, Ms. Costabile turned the machines on and left to pick up Mr. Costabile.

66On cross-examination, Ms. Costabile denied that the complainant’s clothes were stuck when the machines were turned off. She also testified that she was not waiting for the complainant on November 20, 2006, because, as far as she knew, the complainant was not supposed to come back to the Laundromat. She said that she told the complainant to leave because she didn’t want her to bring her business anymore and, if she had not brought the scooter, she would have told her to leave because it had nothing to do with the scooter.

Video

67A digital video recording taken by security cameras at Spinz was entered as an exhibit (Exhibit 10) and viewed by the Tribunal and the parties at the hearing. Mr. Costabile explained that there are four cameras located on the main floor of the Laundromat. When played back, the video recording shows four different views of the Laundromat simultaneously, in four quadrants on the screen, such that almost the entire Laundromat can be viewed at once. The video recording has a running time display, although there was no evidence as to the accuracy of the time display.

68On November 20, 2006, at 10:42 a.m., the complainant can be seen entering the Laundromat on her scooter. At this time, there does not appear to be anyone else on the main floor of the Laundromat. The complainant gets off her scooter, removes bags of laundry from it, and places them on the floor by the washing machines. She then gets back on her scooter and backs it into the location that she testified she parked it. The scooter can be seen parked, with its front pointed towards the west, across the front of the door. From the video recording showing a view to the front of the store (south), the scooter appears to extend across the majority of the door. From the recording showing a view to the east, the left side of the scooter appears to be slightly less than two floor tiles from the front door (Mr. Costabile testified that the floor tiles are 12 inches square).

69At 10:47, Ms. Costabile can be seen approaching the complainant. At this point, the complainant’s laundry is in bags on the floor in front of the washing machines. Ms. Costabile and the complainant appear to be interacting, although there was no audio when the video recording was played. Between 10:48 and 10:51, the complainant can be seen bending down and loading washing machines with her laundry while Ms. Costabile appears to continue to interact with her. A customer can then be seen entering the front door with two baskets and Ms. Costabile assists the customer entering past the scooter with the baskets. At 10:52, Ms. Costabile’s mother then appears to be trying to put a carpet down in front of the door and the complainant moves her scooter out of the way, placing it towards the west wall.

70At 11:08, Ms. Costabile approaches the complainant again. She appears to be pointing in the direction of the washing machines and interacting with the complainant. At 11:12, Ms. Costabile goes over by the scooter and appears to point at something. Ms. Costabile then leaves, while the complainant continues to stand by the washing machines, apparently reading a magazine. Ms. Costabile goes behind the large washing machines, squats down, and appears to be talking on a telephone.

71At 11:14, Ms. Costabile returns and interacts with the complainant who is still standing by the washing machines and, at 11:15, Ms. Costabile leaves towards the back of the Laundromat.

72At 11:20, the complainant moves her scooter out of the Laundromat. She returns and appears to be leaning on or holding on to the washing machines as she goes towards the back of the Laundromat. Shortly thereafter, she removes her clothes from the washing machines and places them in a buggy or push cart which she appears to be leaning on.

73At 11:25, Ms. Costabile returns, appears to speak to the complainant briefly, then leaves the Laundromat. Shortly thereafter, the complainant can be seen moving her laundry to the dryers and loading the upper dryers.

74At 11:35, Ms. Costabile returns to the Laundromat and proceeds to load a dryer near the complainant. Mr. Costabile then enters at 11:36. Although Mr. Costabile appears to be several feet away from Ms. Costabile and the complainant, he appears to be interacting for approximately fifteen seconds and then leaves towards the back of the Laundromat. It is not clear who he was interacting with. Other than that, he does not appear to go near the complainant.

75After 11:49, the complainant can be seen exiting the front door. She returns, sits downs on the bench and appears to be eating something. After 12:00, the complainant can be seen getting her laundry from the dryers and bringing it to the folding table.

76At 12:12, Ms. Costabile can be seen leaving the Laundromat through the front door and Mr. Costabile goes through a door at the back of the Laundromat with his coat on. The recording ends at approximately 12:13.

77In cross-examination of Mr. Costabile, it was pointed out that, on the video recording, an object can be seen in the front basket of the complainant’s scooter which Mr. Costabile agreed could be a cane or an umbrella. However, nowhere on the video recording of November 20, 2006, does the complainant appear to be using a cane.

78It also appears from the video that the complainant is standing the majority of the time. Although the images are a little lacking in clarity and somewhat stilted when played back, only on a couple of occasions does it appear that the complainant is leaning, or may be leaning, on objects for support.

After November 20, 2006

79The complainant testified she never went back to Spinz after November 20, 2006. Her son did laundry for her once a month until spring 2008. He was at home but left to get married on June 7, 2008. Now she has no one to do laundry for her and hasn’t done laundry since then. She explained that previously her son could manage one night a month and he didn’t have much time so they would pick and choose what to wash as he couldn’t do everything. She testified that she can hand wash a blouse or something, but she couldn’t wash big things like towels and blankets and didn’t want to wash underclothes so she sent her son out to buy stuff.

80When asked what she does with dirty clothes, she testified that she throws them out because she can’t wash a big sheet, comforter, or bath towels. She testified that she usually relies on her son and that he will call when he is at Walmart to see if she needs anything. She testified that she has spent roughly six hundred dollars for underclothes, towels and bed sheets.

81On cross-examination by Mr. Costabile, when asked if her apartment building has laundry, the complainant answered that one of the other tenants told her that there are bugs in there. She clarified that the other tenant took her down and showed her and added that the dryers burned clothes, they tried to repair them, and now they have an infestation.

ANALYSIS AND DECISION

Relevant Code provisions

82Sections 1 and 9 of the Code provide as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of… disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

83“Disability” is defined in section 10 of the Code, in part, as follows:

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device.

Assessment of credibility

84Credibility is clearly an issue in this proceeding as the evidence of the parties differs markedly on a number of points. In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [emphasis added]

Disability

85The complainant testified that she injured her back in an industrial accident, she is in constant pain, and that she has had mobility issues for quite some time. She also has kidney and liver problems and diabetes. She testified that she was assessed for a motorized scooter and qualified for one.

86Based on the complainant’s testimony, I am satisfied that she relies on a scooter for mobility assistance and that she has a disability within the meaning of the Code.

87The Commission sought late introduction of a medical note, signed by the complainant’s doctor, to which the respondents initially objected. The parties ultimately agreed that the note could be admitted, subject to the parties’ ability to make submissions at the end of the hearing regarding what weight, if any, should be give to the note. In final submissions, the respondents simply referred to the note as “questionable”. In any event, as stated above, I find, based on the complainant’s evidence alone, that she has a disability within the meaning of the Code.

88The respondents submitted that any member of the public who can afford to do so can purchase a scooter. The respondents also testified and submitted that, contrary to the complainant’s evidence, she did not demonstrate any lack of mobility. For example, the complainant testified that on November 20, 2006, she used a cane for stability. However, it appears from the video recording that she may have had a cane on her scooter but did not rely on it. While the complainant may have exaggerated the extent of her mobility impairment, particularly on November 20, 2006, as can be seen from the video recording, I am nevertheless satisfied that she relies on a scooter for mobility assistance and that she has a disability within the meaning of the Code.

The November 13, 2006, Incident

The request to move the scooter

89With respect to the incident on November 13, 2006, having regard to the principles set out in Faryna v. Chorny, supra, I generally prefer the evidence of the personal respondents over that of the complainant. However, I have difficulty with one significant aspect of Mr. Costabile’s evidence concerning the November 13, 2006, incident. Mr. Costabile testified that he asked the complainant if she could move her scooter, she refused, and he again asked her to move it and said to her that she could even put it outside on the porch, just outside the door. He also told her that the Laundromat wasn’t a parking lot and that he has customers that come in with high end bicycles and they’re not permitted to bring them inside.

90On cross-examination, when asked if he asked the complainant to move her scooter somewhere else in the Laundromat, he responded, “repeatedly.” When asked where he asked her to move it in the Laundromat, he was somewhat evasive. He said anywhere else not impeding the means of egress. When later asked if he provided any suggestions, he said that he meant anywhere in the Laundromat and when she didn’t take him up on that he suggested out on the porch. When she brought up theft, he suggested on the ramp where she could see it.

91While initially Mr. Costabile may not have explicitly told the complainant to move her scooter outside, I find that it quickly became clear that outside, whether on the porch or on the ramp, was the only option presented by Mr. Costabile to the complainant. I find that Mr. Costabile telling the complainant that the Laundromat wasn’t a parking lot and his comparison to bicycles not being permitted inside, is consistent with a finding that the only option he presented to the complainant was to move her scooter outside. I also find that the complainant reacted defiantly to Mr. Costabile’s request and that it is not likely that she would have reacted so defiantly to a request to move her scooter to another location inside the Laundromat. The complainant testified that one of her concerns with putting her scooter outside was theft and Mr. Costabile confirmed in his evidence that the complainant was concerned about theft if she put her scooter outside. There was no evidence that the complainant had any concerns with moving her scooter to another location inside the Laundromat.

92I find that, in requiring the complainant to move her scooter outside on November 13, 2006, Mr. Costabile violated the complainant’s rights, contrary to sections 1 and 9 of the Code. I find that Mr. Costabile and Spinz are jointly and severally liable for this violation, in light of section 46.3 of the Code and considering that Mr. Costabile is a “directing mind” of Spinz.

93It appears, particularly from the November 20, 2006, video evidence, that the complainant’s scooter was obstructing the means of egress. She testified that she parked it in the same spot whenever she attended Spinz. Assuming her scooter was parked in the same location on November 13, 2006, it may not have been unreasonable for Mr. Costabile to request that the complainant move her scooter to another location inside the Laundromat where the means of egress would not have been obstructed. However, Mr. Costabile violated the Code when he insisted that she place her scooter outside.

94The complainant has a disability and relies on her scooter for mobility. It is well established that there is a duty to accommodate individuals with disabilities in the provision of services, short of undue hardship. The needs of persons with disabilities should also be accommodated in a manner that most respects their dignity. In my view, Mr. Costabile’s request that the complainant move her scooter outside was inappropriate in that it resulted in a failure to accommodate the complainant’s needs in a way that most respected her dignity and autonomy. She expressed concern, acknowledged by Mr. Costabile, that if she left her scooter outside, it could be stolen. She also testified that she was concerned about the effect the cold could have on her scooter, particularly on her batteries, although there was no evidence she communicated this particular concern to Mr. Costabile. In addition, no helpful evidence was proffered on what effect, if any, the cold could have had on the complainant’s scooter, and what the temperature was on November 13, 2006. However, I accept that it is reasonable that the complainant would have been concerned about the effect of leaving her scooter outside, particularly since it was new and she would not have had experience using it throughout the colder months. While it appears that the complainant may not have needed her scooter to assist her in moving about the Laundromat once inside, I have no difficulty finding that she needed to rely on her scooter to get home, particularly with her laundry. As such, I find that it was not appropriate to expect the complainant to be separated from her assistive device by placing it outside, thereby causing her to be concerned about it, when it appears the scooter could have been moved to another location inside the Laundromat

95When the complainant was asked in her evidence in chief if she told Mr. Costabile that she needed the scooter, her answers were not very clear and were rather evasive. However, I do not find that in the circumstances it was necessary for the complainant to explicitly inform Mr. Costabile of the reasons for using a scooter. In my view, service providers should be careful to consider that when someone presents with an assistive device, such as a motorized scooter, they may very well have a disability within the meaning of the Code, requiring accommodation.

The request that the complainant take her business elsewhere

96The complainant testified that on November 13, 2006, she told Mr. Costabile, “if you touch me you will be charged with assault.” In her complaint, the complainant states that she told Mr. Costabile that if he touched either her or her scooter, he would be charged. Mr. Costabile testified that, although he never touched her scooter, the complainant said that if he did, she would call the police and have him charged with assault. He testified that she again threatened to call the police and have him charged with assault. At that point, he told her that he was going to give her ten minutes to move her scooter and, if she didn’t, he would. He reminded her that she was no longer welcome as a customer in the Laundromat and told her that, once she was finished her laundry, she could take her business elsewhere. He testified that once she threatened him with “assault”, she was no longer welcome in the Laundromat. The complainant, on the other hand, testified that Mr. Costabile made “threats” and said he was going to get the cops and put her out and she wouldn’t be let back in but he did not tell her to take her business elsewhere on November 13, 2006.

97I find that it is more consistent with the evidence overall, that Mr. Costabile did tell the complainant, on November 13, 2006, to take her business elsewhere. Mr. and Ms. Costabile both testified that, on November 13, 2006, they spoke about the incident and Mr. Costabile told Ms. Costabile that he had informed the complainant that she was no longer welcome in the Laundromat. The complainant also testified that she again attended Spinz on November 20, 2006, because she felt that the respondents couldn’t prevent her from coming in which, in my view, suggests that she was told that she was not welcome at Spinz on November 13, 2006.

98Furthermore, the complainant and the respondents gave evidence about the complainant’s attendance at Spinz, prior to the incidents on November 13 and 20, 2006. The parties agreed that when the complainant first attended Spinz, there was an issue concerning the complainant putting 75 cents into the soap dispensing machine and not receiving soap in return. The complainant testified that Mr. Costabile said to her that “it doesn’t show on the video” and said that she was trying to steal 75 cents from them. She said to him she didn’t care what was on his video and she wanted 75 cents back. She testified that Mr. Costabile came out and threw 75 cents at her.

99The respondents testified that it is their policy that whenever someone claims a loss from one of the machines they check the video. The complainant was informed that they needed to check the video first. Mr. Costabile testified that the complainant became very hostile, rude and confrontational. He denied throwing 75 cents at her. Ms. Costabile also testified that the complainant was confrontational. She stated that Mr. Costabile gave the complainant her money, that he did not throw it at her, and that he placed it on the table below the soap dispensing machine.

100Based on the evidence of the complainant and the respondents, I have no difficulty finding that the complainant was confrontational during the incident regarding the soap dispensing machine. In my view, however, it is highly unlikely that Mr. Costabile would have thrown 75 cents at the complainant and I prefer the evidence of the respondents as to what transpired on that day.

101The complainant testified that, after the incident with the soap dispensing machine, every time she came in, she told them that it was her character they were defaming and that she didn’t want them ever to treat her like that again, unless they wanted to take it to the Supreme Court of Canada. However, she also testified that Ms. Costabile was always very nice and always chatted and that Mr. Costabile would show her new video scanners and washers and dryers he had fixed. The respondents’ evidence was to the contrary. Mr. Costabile testified that they would greet the complainant and stay out of her way and that she had constant complaints. He denied having any conversations with her where he showed her the installation of the new video cameras or repaired machines. Ms. Costabile testified that subsequent to the incident on the first day that the complainant attended Spinz, she knew to keep her interaction limited. She would greet the complainant like everybody else and go about her business, even though the complainant would always have a little comment or “dig”. She testified that the minute her mother would tell her that the complainant was coming, she would move out of the way of where the complainant would need to be, such as near the washing machines, because she did not want to have a confrontation.

102Having considered the evidence of the complainant and the respondents, in my view, it is more likely than not that the respondents did not have friendly conversations with the complainant, beyond greeting her, when she attended Spinz. In my view, it is more likely than not that the relationship between the complainant and the respondents was less than cordial, particularly after the complainant’s confrontational behaviour and comments she testified she made to the respondents, on her first visit to Spinz.

103In my view, the evidence concerning the interactions of the complainant and the respondents, both prior to November 13, 2006, and on that day, support a finding that Mr. Costabile ultimately asked the complainant not to return and to take her business elsewhere on that day. In their evidence, both the complainant and Mr. Costabile described the incident on November 13, 2006, as very confrontational. The complainant testified that Mr. Costabile “lost it” and was screaming at her. He testified that the complainant “went into a rant”, that she became increasingly aggressive, and that she threatened to call the police and have him charged with assault. He testified that once the complainant threatened him with “assault”, he viewed her as a dangerous person and she was no longer welcome in the Laundromat.

104The difficult question is whether or not, in the circumstances, Mr. Costabile advising the complainant that she was no longer welcome and telling her to take her business elsewhere also constituted a violation of the Code. I have found that Mr. Costabile insisted that the complainant move her scooter outside and that she reacted defiantly. It is understandable that the complainant would have perceived the request as an affront to her dignity and it is understandable that, in the circumstances, she would have reacted negatively to Mr. Costabile’s request. Both parties have testified, however, and I find, that what ensued was a very confrontational exchange. I find that the complainant’s own behaviour on November 13, 2006, no doubt contributed to Mr. Costabile ultimately telling her to take her business elsewhere. However, the confrontational exchange that ensued was a direct result of Mr. Costabile insisting that the complainant remove her scooter from inside the Laundromat. I have already found that this request was discriminatory. It is a well established principle in human rights law that even if only one of the grounds for the treatment complained of is prohibited under the Code, this is sufficient to establish that a breach of the prohibited ground is a proximate cause. In my view, there is a sufficient nexus between Mr. Costabile insisting, contrary to the Code, that the complainant remove her scooter from inside the Laundromat and his ultimate request that she take her business elsewhere when she refused to comply with his request. The request to take her business elsewhere would not have happened on November 13, 2006, without Mr. Costabile’s insistence that she remove her scooter from inside the Laundromat. I find, therefore, that the request that she take her business elsewhere also violated the complainant’s right to be free from discrimination on the basis of disability, contrary to sections 1 and 9 of the Code, and that Mr. Costabile and Spinz are liable for this violation.

The November 20, 2006, Incident

105With respect to the incident on November 20, 2006, I prefer the evidence of the respondents over that of the complainant where their evidence differs.

106The complainant was adamant that both of the personal respondents were at Spinz on November 20, 2006, when she arrived and that both appeared to be waiting for her. This was even stated in her complaint (Exhibit 6) which appears to be self-drafted and signed by the complainant on December 15, 2006, less than one month after the incident in question. However, this allegation does not appear to be supported by the evidence. Both of the personal respondents were clear in their evidence that Mr. Costabile was not at Spinz when the complainant arrived on that day. I find that he arrived later, after Ms. Costabile left the Laundromat to pick him up and they returned together. From the video, it appears that the complainant arrived at approximately 10:42 a.m. and Mr. Costabile does not arrive until approximately 11:35 a.m. The video evidence appears consistent with the evidence of the personal respondents. Ms. Costabile is the only individual who appears to be interacting with the complainant when she arrives on November 20, 2006. Ms. Costabile is seen leaving the Laundromat by herself and when she returns, Mr. Costabile is with her. After this point, he can be seen a number of times on the video recording but, with one possible brief exception when the complainant is at the dryers and Ms. Costabile is near her, at no time does Mr. Costabile appear to be near the complainant or interacting with her.

107It also does not appear, as alleged by the complainant, that the respondents were waiting for her on November 20, 2006. I have already found that Mr. Costabile was not at Spinz when the complainant arrived. Ms. Costabile testified that she was downstairs when the complainant arrived and that she saw the complainant arrive on video. She explained on cross-examination that she was not waiting for the complainant as she did not expect that the complainant would be returning to Spinz. Further, the video recording shows that Ms. Costabile did not approach the complainant until approximately 10:47, after the complainant had unloaded her laundry from her scooter, parked her scooter in the usual location and began putting her laundry in the washing machines. Both the complainant and Ms. Costabile testified that the complainant was already putting her laundry into the washing machines when Ms. Costabile first approached the complainant on November 20, 2006.

108Apart from two minor exceptions, the video evidence appears consistent with Ms. Costabile’s version of events. After her second interaction with the complainant, Ms. Costabile can be seen going behind the large washing machines and she appears to be talking on a telephone, whereas she testified she went downstairs to make a telephone call after her second interaction with the complainant. She also did not mention in her evidence that she spoke briefly to the complainant before departing which she appears to do on the video recording.

109I also prefer the evidence of Ms. Costabile that, on November 20, 2006, she did not ask the complainant to put her scooter outside, nor did she suggest that she would turn the machines back on if the complainant did so. I find that when Ms. Costabile first approached the complainant, she asked her to take her business elsewhere. Ms. Costabile testified that, as far as she knew, the complainant was not supposed to come back to the Laundromat. The personal respondents both testified that, on November 13, 2006, they spoke and Mr. Costabile told Ms. Costabile that he had informed the complainant that she was no longer welcome.

110The complainant agreed that she was already putting her laundry into the washing machines when Ms. Costabile first approached her and that Ms. Costabile told her that she couldn’t do her laundry. When asked if Ms. Costabile said please don’t load your machines, she agreed that Ms. Costabile said something to that effect, but after she had loaded her machines. She also testified that Ms. Costabile continued to say that she had to put her scooter out or she wasn’t getting her laundry done that day. On cross-examination, when asked if she was reminded by Ms. Costabile to take her business elsewhere, she said “no”. However, she also testified that, after the machines were turned back on, Ms. Costabile said she should take her business elsewhere.

111In my view, Ms. Costabile’s evidence with respect to what transpired on November 20, 2006, is more consistent overall, whereas I find the complainant’s evidence to be somewhat contradictory. For example, the complainant agreed that when Ms. Costabile approached her she told her that she couldn’t do her laundry but she also testified that Ms. Costabile didn’t tell her to take her business elsewhere until much later, after the machines were turned back on.

112I have found that Mr. Costabile and Spinz violated the complainant’s right to be free from discrimination when she was asked to take her business elsewhere on November 13, 2006. While I find that the complainant’s right to be free from discrimination was again violated on November 20, 2006, when she was again asked to take her business elsewhere, I find that the violation of the complainant’s rights on November 20, 2006, flows directly from Mr. Costabile’s decision that the complainant was not to return to the Laundromat. Consequently, I do not find Ms. Costabile liable for violating the complainant’s rights when she attempted to carry out Mr. Costabile’s instructions on November 20, 2006. As I have found, Mr. Costabile informed the complainant on November 13, 2006, that she was no longer welcome and told her to take her business elsewhere. He also told Ms. Costabile on that day that he didn’t want the complainant back in the Laundromat, and that he had informed the complainant that she was no longer welcome. He instructed Ms. Costabile to not allow the complainant access to the Laundromat anymore. She testified that she understood the main reason was because the complainant had threatened Mr. Costabile and no other reason was given. As such, I find that Mr. Costabile and Spinz are liable for the effects of discrimination on the complainant when Ms. Costabile attempted to carry out Mr. Costabile’s instructions on November 20, 2006.

REMEDY

113The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, which provides, inter alia, the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and the power to direct any party to do anything to promote compliance with the Code.

General Damages

114On behalf of the complainant, the Commission seeks $5,000 for general damages, as well as pre-judgment and post-judgment interest.

115A general damages award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), (2008) 295 D.L.R. (4th) 425 (Ont. Sup. Ct.), held that the following are among the factors the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

116The complainant testified that on November 13, 2006, she felt threatened, vulnerable and intimidated, by Mr. Costabile. She was concerned that if she left her scooter outside, it could be stolen, and she was also concerned about the effect the cold could have on her scooter.

117The complainant testified that, on November 20, 2006, she was very, very distressed and concerned as she was being blackmailed and, second, she was going to have to come up the ramp and didn’t know how she was going to get her clothes back to the scooter. She sat down and was so upset she wanted to cry but didn’t want to cry in front of people. She also testified that she was worried about her scooter because the week before, four were stolen in Toronto and she couldn’t figure out how she was going to get home if that happened. Also, it was a cold day and she was worried about the batteries. She struggled quite a bit getting clothes out to the scooter. She went home and the scooter stopped on her three or four times. It was very cold for her. When she got home, the scooter was “out of commission” for two or three days and she spent three days in bed because of stress and lugging the laundry outside which she described as exhausting and strenuous.

118I have found that the request that the complainant move her scooter outside was inappropriate in that it resulted in a failure to accommodate the complainant’s needs in a way that most respected her dignity and autonomy. The complainant’s rights were also violated when she was asked to take her business elsewhere, both on November 13 and 20, 2006. However, I have also found that the complainant’s own behaviour on November 13, 2006, no doubt contributed to Mr. Costabile ultimately telling her to take her business elsewhere, and I find that this is a relevant consideration in assessing general damages. Further, on November 20, 2006, the complainant returned to Spinz determined to do her laundry, telling Ms. Costabile that she checked with the manager and she could keep her machine where she had put it in the Laundromat. When Ms. Costabile asked her to leave, she remained defiant and confrontational and continued to load her laundry into the respondents’ washing machines.

119While the complainant’s conduct in no way excuses Mr. Costabile’s discriminatory requests, her own behaviour in engendering acrimony, prior to and during the incidents in November 2006, must be acknowledged in assessing the degree of harm she claims she suffered because of the discrimination see [Abdallah v. Thames Valley District School Board, 2008 HRTO 230](https://www.minicounsel.ca/hrto/2008/230), at para. [108]. I recognize that there needs to be sensitivity to situations where individuals react negatively to what they perceive as discrimination. I also recognize that it is important that individuals are able to claim and enforce their rights under the Code. However, in the present circumstances, I have found that the complainant’s relationship was less than friendly, prior to the incidents in November 2006, beginning with her first visit to Spinz when the complainant was very confrontational with the personal respondents. It is also my view that the complainant’s behaviour in November 2006 was excessively confrontational and acrimonious in the circumstances and exacerbated the tension with the respondents.

120In addition, with respect to November 20, 2006, it appears that the complainant may have exaggerated the extent of her mobility impairment. It is impossible to ascertain what pain, if any, the complainant may have experienced as a result of placing her scooter outside on the ramp. In addition, the video recording ends before the complainant can be seen leaving with her laundry. However, what can be observed from the video recording is that the complainant is standing the majority of the time. Only on a couple of occasions, does it appear that the complainant is leaning, or may be leaning, on objects for support. She does not appear to use a cane as she testified she did. At one point she can be seen leaving the Laundromat, walking down the ramp, and returning up the ramp a short time later. The complainant does not appear to have any difficulty in walking up and down the ramp. Finally, it is important to note that I have found that Ms. Costabile did not ask the complainant to place her scooter outside, although the complainant may have thought that if she did, Ms. Costabile would turn the washing machines back on.

121In all of the circumstances I find that an award of $2,500 is appropriate as compensation for the impact of the discrimination on the complainant’s dignity, feelings and self-respect.

Special Damages

122The Commission also requested, on behalf of the complainant, $600 in special damages. The complainant testified that she has spent roughly $600 for underclothes, towels and bed sheets. She stated that she couldn’t wash big things like towels and blankets and didn’t want to wash underclothes so she sent her son out to buy stuff. When asked what she does with dirty clothes, she testified that she throws them out because she can’t wash a big sheet, comforter, or bath towels. However, no other evidence, such as receipts, was proffered to support this claim. In the circumstances, I am not prepared to make an order for special damages.

Letter of Assurance and Continuation of Services

123The Commission requests that the Tribunal order the respondents to provide the complainant with a letter of assurance acknowledging its duty to accommodate under the Code and confirming that the complainant will not be barred from accessing its Laundromat services for the reason that she uses a motorized scooter.

124To the extent that the Commission is requesting that the Tribunal order the respondents to not bar the complainant from its Laundromat, I am mindful of my findings with respect to the level of animosity between the parties. The complainant engaged in confrontational behaviour with the respondents on her first visit to Spinz. Both the complainant and Mr. Costabile described the incident on November 13, 2006, as very confrontational, and I have found that the complainant’s own behaviour on November 13, 2006, no doubt contributed to Mr. Costabile ultimately telling her to take her business elsewhere. The incident on November 20, 2006, also involved a very confrontational exchange between the complainant and Ms. Costabile.

125Further, the animosity between the complainant and the personal respondents was evident throughout the hearing. The complainant was consistently acrimonious in her dealings with Mr. Costable, in particular. His cross-examination of her was particularly challenging as it was punctuated by frequent strident outbursts on the part of the complainant. At times, Mr. Costabile was quite confrontational in response. In the circumstances, I do not find that it would be appropriate to make an order with respect to the complainant’s attendance at Spinz and I decline to do so. Further, in light of the public interest remedies ordered below, I do not find that it is necessary to require Mr. Costabile and Spinz to otherwise provide a letter of assurance.

Public Interest Remedies

126The Commission also requested that the Tribunal order the respondents to post a “Code card” and to study and circulate copies of the Commission’s Policy and Guidelines on the Duty to Accommodate to all employees and owners of Spinz.

127Mr. Costabile testified that there are a number of signs posted in the Laundromat, but none concerning the Code. I find that it is appropriate to order that Mr. Costabile post a Commission “Code card”, to be provided by the Commission, inside Spinz in a location where it can be easily seen and read by patrons and any staff.

128As I have only found that Mr. Costabile and, therefore, Spinz violated the complainant’s rights under the Code, and there was no evidence that there were any employees other than Ms. Costabile and her mother assisting in the operation of Spinz, I find it appropriate to order that Mr. Costabile obtain and read a copy of the Commission’s Policy and Guidelines on the Duty to Accommodate.

ORDER

129Accordingly, the Tribunal orders as follows:

1. Within 30 days of the date of this Order, Mr. Costabile and Spinz are jointly and severally liable to pay the complainant $2,500 as general damages;

2. Pre-judgment interest is payable on the above amount from November 13, 2006, to the date of this decision in accordance with the Courts of Justice Act. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.

3. Within 30 days of the date of this Order, Mr. Costabile shall obtain and read a copy of the Commission’s Policy and Guidelines on the Duty to Accommodate; and

4. Mr. Costabile shall post a Commission “Code card” inside Spinz in a location where it can be easily seen and read by patrons and any staff, immediately upon being provided with a “Code card” by the Commission.