HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
B. M. by his next friend J. M.
Applicant
-and-
The Corporation of the City of Cambridge, Andrea Riley and Don Smith
Respondents
DECISION
Adjudicator: Mary Truemner
Indexed as: B.M. v. Cambridge (City)
AppearanceS BY
B.M. by his next friend J.M., Applicant ) Lori Mishibinijima and Kate Stephenson, ) Counsel
The Corporation of the )
City of Cambridge, Andrea Riley ) Asad Saji, Counsel
and Don Smith, Respondents )
INTRODUCTION
1This is a Decision in respect of an Application filed on October 28, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant, through his next friend, his mother, alleges discrimination in services on the basis of disability.
2The applicant was 10 years old and diagnosed with Asperger’s Syndrome at the time of filing the Application. Prior to the Application, he had been a camper for many years at a summer day camp in Cambridge (the “Dolson camp”) that the corporate respondent (the “City”) operates. He alleges that the respondents refused to allow him to attend the Dolson camp in 2008 unless he was accompanied by one of their inclusion facilitators whom they would only provide for 2 of the 9 weeks of the summer programme.
DECISION
3After hearing the evidence, I have concluded that the respondents breached the Code. While the respondents may have been justified in requiring an inclusion facilitator, by not providing one for all of the weeks of the summer when the applicant applied to attend the Dolson camp, and refusing to allow him to attend camp without one, they failed to accommodate the applicant’s needs arising from his disability. My reasons follow.
FACTS
4The witnesses provided testimony about some facts that are not relevant to whether the applicant’s rights under the Code were infringed; therefore, not all of their testimony is included in this Decision. I set out below a summary of the relevant evidence. Much of the evidence was not in dispute. Where there are disputes, I address them below, along with the reasons for my findings.
The Witnesses
5There were 7 people, including 4 of the City’s employees, who testified at the hearing:
J.M., the applicant’s mother.
G.M., the applicant’s father.
Deborah Hounan, a Psychological Associate since 2000 who has a Master’s in Education (Assessment and Counselling). She was qualified to give expert testimony about the applicant who she began seeing in 2004. She diagnosed the applicant with Asperger’s Syndrome in January of 2007, and provided him with therapy and counselling in 2007 and 2008, although she testified that after the Spring of 2008, she did not need to see the applicant because he was doing so well. She provided training on how to accommodate the applicant’s disability to the teaching staff at the applicant’s school.
Amy Lee, the Recreation Supervisor at the Dolson camp. She observed the applicant at the Dolson camp, discussed the applicant with her supervisors and with J.M., and received reports about him from the camp staff leaders who supervised J.M. directly.
Ruth Reitzel, the Recreation Programmer at the Dolson camp and Amy Lee’s supervisor. Her testimony was mainly with respect to her dealing with the applicant after an incident on August 24, 2007 at the Dolson camp, and with respect to J.M.’s attempt to enrol the applicant for the summer of 2008.
Connie Smith, the Area Recreation Manager who was housed at the Dolson Centre where the Dolson camp operates. She was also involved in dealing with the applicant on August 24, 2007. She received reports from the applicant’s supervisors and leaders, and made the decision to refer the applicant to Inclusion Services which, amongst other services, matches campers with inclusion facilitators. She made this decision in March 2008 after a report about a problem with the applicant’s behaviour at another camp operated by the City.
Andrea Riley, a personal respondent and Inclusion Services Coordinator for the City's programs, including the Dolson camp. She was approached by J.M. after the applicant had been attending another camp operated by the City during the March school break of 2008. Ms. Riley encouraged J.M. to apply for an inclusion facilitator for the applicant for the summer of 2008, and arranged for one to be offered for 2 weeks.
Events leading up to the respondents’ decision to require that the applicant attend the Dolson camp with an inclusion facilitator
6In 2006, the applicant had some problems at the Dolson camp and J.M. spoke with Dolson camp staff about the possibility that the applicant might have one or some disabilities. Both J.M. and the staff of the Dolson camp observed that the applicant was unable to fully participate in the activities, exhibiting anxiety and withdrawing from activities.
7Amy Lee, the Recreation Supervisor, wrote a letter about the problems that the applicant had at the Dolson camp, and how he required exceptional support from the staff. The last line of the letter states, “We do not have the staff or budget to supply [the applicant] with the one-on-one care he needs to participate and enjoy camp.” Both Ms. Lee and J.M. hoped that the letter would assist J.M. in getting additional support for the applicant.
8Between the summer of 2006 and the summer of 2007, the applicant was diagnosed with Asperger’s Syndrome. Deborah Hounan, a Psychological Associate, provided counselling to help him and his family address and manage this diagnosis.
9In 2007, J.M. again enrolled the applicant for the summer at the Dolson camp. At the beginning of the summer, J.M. advised the camp of the applicant’s diagnosis.
10The applicant's behaviour at the camp in 2007 was different than it had been the year before. Instead of withdrawing from the other campers, as he had the previous summer, the applicant was outgoing, and exhibited behaviour that the staff felt was harmful to other campers. The staff did not follow protocol with respect to disciplining the applicant, but instead made constant attempts to accommodate what they believed to be behaviour related to the applicant’s disability. I find that the Dolson camp staff knew during the summer of 2007 that the applicant had a disability, and that they knew the specific nature of that disability. I also find that staff dealt with the applicant’s behaviour issues in the context of accommodating that disability.
11J.M. testified that the camp staff did not report to her that the applicant had behaviour problems in the summer of 2007 until August 24, 2007 when she was called to address an incident in which her son called another camper a racial epithet.
12Connie Smith, the Area Recreation Superintendent, met with J.M. and the applicant to discuss the incident. The applicant was very upset and apologetic. He said that he didn’t know what the word meant. J.M. spoke with Ms. Smith about how a symptom of Asperger’s Syndrome is that the applicant uses words literally without knowing what they mean, and that the racial epithet he used may have come from the home of the applicant’s friend, where the friend’s mother, an African-Canadian, apparently used the word.
13Ms. Smith’s notes and several incident reports by other Dolson camp staff about the applicant’s behaviour on August 24, 2007 were filed as exhibits at the hearing. I find that the staff accepted that the applicant’s behaviour was caused, at least in part, by his disability.
14While the respondents take the position that staff did report behaviour problems to J.M, on a regular basis throughout the summer of 2007, it is unnecessary for me to find J.M. actually received reports about difficulties the Dolson camp was having with her son. I find that Ms. Lee frequently received oral reports from the leaders, and that she and Ms. Smith asked for a written report at the end of the summer of 2007 from four of the applicant’s leaders and supervisors which indicates that the applicant behaved so as to require special attention on a regular basis. I therefore accept Ms. Lee and Ms. Smith’s testimony that the applicant frequently required special attention from camp staff in the summer of 2007, but none of the respondents and none of the City’s employees consulted in 2007 with the applicant’s parents, his counsellor, his doctors or school about how to best accommodate the applicant.
15For the week-long school March break in 2008, the applicant attended another of the respondent's camps. Before the week was over, the staff of that camp contacted J.M. to express concern over the applicant's use of another racial epithet in a camp song. He was removed immediately from the programming that day, and did not finish the week. J.M. was upset with the way the staff at the March break camp handled the incident.
16Ms. Smith heard about the March break incident in March 2008, and then, in anticipation that J.M. would enrol the applicant for the program at the Dolson camp for the summer of 2008, decided to refer the applicant to Inclusion Services, a programme run by the City which offered individual support to campers. I find this decision was made because she considered the applicant needed accommodation because of his disability.
The Arrangements for the Applicant to Receive Support for the Summer of 2008
17Andrea Riley, the Inclusion Services Coordinator for the City’s programmes, testified that very soon after the applicant finished attending the 2008 March break camp, J.M. came to City Hall to talk about why the applicant was pulled out of the programming, and to express her concern that staff were over-reacting to her son’s language.
18Both J.M. and Ms. Riley agree that they spoke at that time about providing the applicant with support for the summer of 2008 at the Dolson camp. They discussed the applicant’s needs. J.M. did not believe that an inclusion facilitator who shadowed the applicant was necessary. She therefore questioned the appropriateness of the proposed accommodation, but wanted some form of accommodation of her son’s disability. Ms. Riley assured J.M. that an inclusion facilitator would not shadow B.M. Both J.M. and Ms. Riley agreed in their testimony that the inclusion facilitator was described at that point as someone who would be present with the applicant at the Dolson camp in order that he could participate fully in the activities, and in order to minimize the impact of inappropriate behaviour on others attending the camp. I therefore find that an inclusion facilitator was not meant to be a shadow to the applicant. J.M. appeared to be comfortable with applying for an inclusion facilitator for the applicant for the summer of 2008, and did so.
19The applicant led a significant amount of evidence on his ability to attend the Dolson camp without an inclusion facilitator. I have found that the respondents have not shown that providing the inclusion facilitator for the whole summer would have caused undue hardship, and that the respondents did not meet their procedural duty to accommodate by exploring the possibility of accommodations other than an inclusion facilitator. Accordingly, there is no need to determine whether accommodations other than an inclusion facilitator would have allowed the applicant to attend the camp without undue hardship to the respondents.
20Ms. Riley testified that she told J.M. that only one week with an inclusion facilitator could be guaranteed. The "Participant Information Form," that Ms. Riley encouraged J.M. to complete, indicates that the additional staff support is available for a maximum of one week per child unless “additional staff hours are available.”
21J.M. completed this form on March 24, 2008, and indicated that her child’s disability or special need is autism and anxiety disorder with possible “OSD”. On the form, J.M. requested support at the Dolson camp for the applicant for each of the six weeks listed from July 2 – August 8, 2008. None of the witnesses explained why further weeks in August were not listed as options on the form, but as stated in the Response, I find that the City’s camp programmes were available to campers until August 29, 2008.
22J.M. did not follow the form’s instructions which asked her to identify and rank the weeks she wished to have assistance. I find that J.M. was requesting her son to be accommodated for at least the six weeks of the summer listed on the form when she filled it out.
23Ms. Riley testified that she told J.M. at the beginning of April 2008 that only one week with an inclusion facilitator was guaranteed, but that she would get back to J.M. She testified that she contacted J.M. later that month to confirm that they could only offer a total of two weeks with an inclusion facilitator, and J.M. was very upset.
Restrictions placed upon the applicant's attendance at the Dolson camp for the summer of 2008
24J.M. testified that, until June of 2008, she understood that the inclusion facilitator’s participation would not limit the number of weeks that the applicant could attend in the summer of 2008.
25Her understanding is supported by the testimony of Ms. Riley and an undated internal memo authored by Ms. Smith which both contemplate the possibility that, generally, campers with special needs might be accommodated in ways other than through an inclusion facilitator. It appears, however, that Ms. Smith was of the opinion that the only option the respondents should offer to the applicant was the inclusion facilitator:
During the third week of March 2008, I had a discussion with Andrea Riley with regards to [the applicant] and the issues from summer 2007 at Dolson and March 2008 at Allison Neighbourhood. Andrea indicated that she was going to talk with [J.M.] and try to sort out what needs they had with regards to [the applicant] and how best to help. Further to this conversation, once Andrea had met with [J.M.] and a decision was made that [the applicant] should have one on one accommodation, Andrea and I agreed to talk closer to the summer when schedules were in the making. Andrea called mid-June to let me know the two weeks that [the applicant] would have an inclusion facilitator at Dolson and that Lena Dykstra would be calling me to set up an appointment. Andrea and I felt it best to meet at Dolson with [J.M.], Lena, Andrea and I in attendance so we could have a clear understanding of how the two weeks with the inclusion facilitator would work and to resolve the weeks with no IF availability as I believe [the applicant] needs to have this accommodation.
26On June 4, 2008, J.M. e-mailed Ms. Riley asking for an update. Ms. Riley testified that she understood J.M.’s e-mail to be a question about the inclusion facilitator. She therefore responded, "Yes we have confirmed [the applicant's] space this summer. Applications were not due in until May 30 so the calls are made to parents next week, as staff are currently scheduling workers with applicants. We will be in touch next week. Thx.”
27Later in June of 2008, J.M. was contacted by the inclusion facilitator, Lena Dykstra, who was assigned to the applicant. J.M. testified that Ms. Dykstra told her that the applicant could not attend the Dolson camp without her, and that the applicant could therefore only attend for two weeks. She testified that she was not told about other options, like the PAL programme, to allow the applicant to attend the Dolson camp for other weeks. The respondents chose not to call Ms. Dykstra as a witness, and I therefore do not have her evidence on this point.
28J.M. testified that the summer was a week away, and that she was only then being told that the applicant could not attend the Dolson camp for the full summer as he had attended in previous years. She remembered that the applicant was confirmed in April or May to attend nine weeks in the summer of 2007. Any other year, confirmation was provided well in advance. She was very upset.
29J.M. testified that she received several communications from the respondents confirming that the applicant could only attend the Dolson camp with an inclusion facilitator. On June 20, 2008, after speaking with Ms. Lykstra, J.M. attempted to enrol the applicant for the entire summer programme and pay money to cover the full programme, but the Dolson camp would not accept payment in full and would only accept payment for two weeks. Also on June 20, 2008, J.M. wrote an e-mail to Ms. Riley asking why the applicant was only able to access camp for the two weeks when a support worker was attending, and why he was being denied access to camp for the other remaining summer camp weeks in which the support worker was unavailable. In that e-mail, J.M. reminded Ms. Riley that she never met the applicant or consulted the applicant’s therapist and doctors. In that e-mail, J.M. challenged the respondents’ conclusion that the applicant required full support to attend summer camp, and that he was unable to attend without support. Ms. Riley testified that by that time, she was directed to leave the matter to her department head, Jim King.
30J.M. testified that at the end of June 2008, she spoke with Don Smith, the City’s Chief Administrative Officer, who said that he and Mr. King had decided that the applicant required a level of attention that they don’t have the resources to provide. In an e-mail to JM of July 7, 2008, Mr. Smith confirmed that the City was able to provide an inclusion facilitator only for the weeks of July 14-18, 2008 and August 5-8, 2008, and stated, "as we discussed at length, we can no longer accommodate your son in the regular summer camp program. We feel as he would benefit from the one on one attention that an inclusion facilitator can provide." J.M. replied to Mr. Smith's e-mail that same day:
[Your] decision to not allow [the applicant] access to summer camp without a city inclusion facilitator and limit his attendance thereof has put us in a very difficult and uneasy situation. Please read the attachments, as they may better help you understand my son’s need to be included without one-on-one support, as such a decision is not in the best interest of my [son] socially, psychologically, emotionally. Perhaps the attachments [letters from school and therapist, Ms. Hounan] will assist you in your decision. [The applicant], as you know, has been attending summer camp for five years. As you can see from the letters provided, [the applicant] does not require a one on one support person in any social setting or while at school. Rather he requires the understanding and compassion of those around him...
31The following day, Mr. Smith e-mailed:
I'm sorry, but we can't accommodate [the applicant] in the regular summer camp program. Our staff do their best to help children like [the applicant], but we really feel it would be best for everyone concerned, if he was provided with an inclusion facilitator.
32The respondents did not attempt to consult with the health professionals involved in the applicant’s life, nor did they arrange for any of their own health professionals to assess the applicant and his needs. Mr. Smith apologized to J.M. for using the phrase, “like [the applicant]” but he did not retreat from his position, nor did he offer J.M. the option that the applicant attend the camp without an inclusion facilitator. J.M. offered to have Ms. Hounan train the staff at her own expense so that they would know how to best respond to the applicant, but the offer was not explored by the respondents.
33I find that the respondents would only allow the applicant to attend the Dolson camp if he was accompanied by an inclusion facilitator, and that the respondents refused to allow J.M. to enrol her son at the Dolson Camp for the weeks to which an inclusion facilitator had not been assigned.
Undue Hardship
34Ms. Smith testified that the Dolson camp is not a licensed day care and does not require a license. She said that the City loses money on the camp. She testified that she did not have the time to train regular staff on dealing with disability, so instead the Dolson camp decided to use the inclusion facilitator approach. Ms. Smith testified that the applicant would be better served with an inclusion facilitator who would be more attuned to his needs than the regular staff at the camp.
35Ms. Riley testified that there were three inclusion facilitators who served 18 to 30 children in 2008. She said that the City followed what other municipalities were doing and limited the support to one week per child because the waiting lists were so long. She said that in 2008, there were about 50 children on the waiting list.
36In his closing submission, counsel for the respondents addressed the possibility of providing inclusion facilitators to children who required them for the months of July and August. Presuming there were 74 children wishing to receive support through inclusion facilitators as in 2008, he argued that the City would need to hire 74 inclusion facilitators for the summer to fully accommodate each child. Other than this calculation, I was not provided with any evidence to support an argument that the cost of hiring additional inclusion facilitators would amount to undue hardship on the City.
ANALYSIS
37The Code prohibits discrimination in services because of disability. The respondents did not dispute that the applicant has a “disability” as defined in section 10 of the Code or that this disability required accommodation.
38It is clear that the applicant’s disability was a factor in his inability to attend camp for the entire period camp was being offered in the summer of 2008. He has therefore established a prima facie case of discrimination and the onus shifts to the City to establish that it met its duty of procedural and substantive accommodation to the point of undue hardship.
39The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1, 1999 CanLII 652 (S.C.C.) (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, 36 C.H.R.R. D/129 (“Grismer”).
40Accommodation is a collaborative process: the person with a duty to accommodate is required to actively seek the information he or she needs, and must be prepared to consider and explore possibilities and alternatives. See: Dixon v. 930187 Ontario, 2010 HRTO 256; Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, affirmed ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).
41From March 2008 onwards, the respondents in this case understood that the applicant wished to attend camp for the entire summer. Ms. Riley testified that there was a 50 person waiting list for people who wanted to use an inclusion facilitator in the summer of 2008, but she provided no evidence with respect to why more facilitators were not hired after March 2008, or whether the respondents made an effort to hire additional facilitators. One witness mentioned that Dolson camp operated at a loss, but the City did not disclose any financial statements to support this testimony.
42Ms. Riley testified that in 2009 the City was able to hire 6 inclusion facilitators, but did not explain why the City was unable to do so the previous year. No evidence was provided to explain what budget or outside funding paid for the additional inclusion facilitators in 2009 or to describe the cost of providing the applicant with an inclusion facilitator for the full summer of 2008. No evidence was provided to show that the cost would have caused the City to experience undue hardship. No other reason for not providing more services from inclusion facilitators was offered.
43The Supreme Court of Canada has confirmed Tribunal jurisprudence that states that employers cannot generally rely upon beliefs or impressionistic evidence in establishing undue hardship. See for example Grismer, supra at para. 34; and Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, 2007 SCC 15, at para. 226. See also Turnbull v. Famous Players Inc., 2001 CanLII 26228 (ON H.R.T.), 40 C.H.R.R. D/333.
44The respondents decided that the only means by which they would accommodate the applicant was by providing him with an inclusion facilitator, but then offered to provide one for only a small part of the time he needed one, and to exclude him from the Dolson camp for the majority of the summer. Without any clear evidence to show the effect of the costs of providing an inclusion facilitator for the entire summer relative to the respondents’ financial circumstances, I find that the respondents have failed to meet their onus to demonstrate that it would have constituted an undue hardship for them to provide the substantive accommodation of an inclusion facilitator for the entire summer.
45With regard to the procedural duty, the respondents were required to give serious consideration not only to whether they could provide an inclusion facilitator for the entire summer, to the point of undue hardship, but also to whether the applicant could attend the Dolson camp with an alternative form of accommodation. The respondents stated that they did not have the time to train regular staff on dealing with disability and therefore opted for the inclusion facilitator approach, but Ms. Smith testified that she could have added human rights training on special needs to the general training agenda prepared for the training of regular camp staff prior to the beginning of summer.
46Neither Ms. Riley, Mr. Smith nor Mr. King made any effort to professionally assess the applicant, or consult with experts who knew him to explore possible alternatives to an inclusion facilitator despite the fact that J.M. made offers to facilitate the consultations. In fact, the evidence provided by J.M., G.M. and Deborah Hounan suggests that alternate and inexpensive forms of accommodation existed, other than support from an inclusion facilitator. An example is J.M.’s offer to pay for Ms. Hounan to train the regular staff about Asperger’s Syndrome and about how staff could deal with the applicant in the context of his particular needs. Ms. Hounan testified that she has successfully provided such training elsewhere in 1 ½ - 2 hours. The respondents thus failed to meet the procedural aspect of the duty to accommodate.
47Accordingly, the applicant has established a breach of the Code in respect of the respondents’ refusal to allow the applicant to attend the Dolson camp for more than 2 weeks and their failure to provide an accommodation to the applicant so that he could do so. The respondents have not shown that they would have experienced undue hardship in providing an inclusion facilitator for the full summer of 2008, or that they explored alternative ways to provide accommodation.
REMEDY
48Under s.45.2(1) of the Code, the Tribunal has the jurisdiction to make one or more of the following orders upon finding discrimination by one party against another:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
Liability of Personal Respondents
49Section 46.3 of the Code provides:
46.3(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
50The evidence submitted at the hearing indicated that the personal respondents were acting in the course of their employment in their dealings with the applicant and the events giving rise to the infringement of his Code-protected rights. The failure to accommodate the applicant in violation of the Code therefore gives rise to corporate liability only.
Monetary Compensation
51The applicant has requested monetary compensation to address the extra transportation and childcare costs, as well as lost wages incurred by J.M. which the applicant claims were a result of J.M.’s need to remain at home to care for him given that he was unable to attend the Dolson camp. He has also requested $25,000 in “general damages” which he claims is justified given his vulnerability because he is both a child and has a disability.
Injury to Dignity, Feelings and Self-Respect
52Quantifying intangible loss and distress such as injury to dignity, feelings and self-respect arising from an infringement of Code rights is a difficult exercise. The impact of the discriminatory action on the individual applicant’s subjective experience is particularly difficult in this case where the applicant, a young boy, did not testify at the hearing.
53On the basis of his parents’ evidence, however, I accept that the applicant felt lonely and isolated from his neighbourhood friends, and felt that he, himself, was to blame for not being allowed to return to the Dolson camp because he understood that his use of inappropriate words was at the root of the denial of services by the respondents. I accept J.M.’s evidence that the applicant cried because of the isolation from his neighbourhood friends who did attend the camp.
54Deborah Hounan testified at the hearing that, in her opinion, the applicant would have been very anxious about not being able to attend camp and would think that something was wrong with him, so that his self-esteem would drop. On the other hand, she testified in the late summer of 2009 that she had not seen him since the Spring of 2008 because he was doing so well. I therefore do not give much weight to her expert evidence regarding what injury to his feelings, dignity and self-respect the applicant would have incurred.
55An order for compensation for such injuries is a discretionary award. I do not agree with the applicant’s counsel that an award of $25,000 is justified. However, in the circumstances of this case involving a particularly vulnerable applicant given his age and disability, an award of $12,000 is appropriate to compensate the applicant for loss of dignity and the injury to his feelings and self-respect arising from the breach of his right to be free from discrimination due to his disability. See ADGA Group Consultants Inc. v. Lane, supra, which confirmed that an award of general damages is predicated upon a number of considerations including the particular vulnerability of the complainant.
56In reaching this amount, I have reviewed the decision of the British Columbia Human Rights Tribunal in Moore v. BC (Ministry of Education and School District No 44), (2005) 2005 BCHRT 580, 54 CHRR D/245 provided by the applicant. The respondents distinguished this decision on the basis that there was no irreparable impact on this applicant in contrast with the finding in Moore. I am satisfied, however, that this amount is appropriate given similar awards in cases where services were denied. See Brown v. Trebas Institute Ontario Inc., 2008 HRTO 10; Turnbull, supra at para 37; and Lepofsky v. Toronto Transit Commission, 2007 HRTO 41. An award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination.
Out of pocket expenses
57The applicant also relied upon Moore to argue that, while the specific losses incurred as a result of the discrimination were technically expenses paid by the applicant’s parent, the Tribunal has jurisdiction to award them to the applicant. The respondents argued that the out of pocket expenses the applicant is claiming are in reality his mother’s losses and are only recoverable by her. They point out that J.M. is not a party to these proceedings, and therefore, under s.45.2(1)1., the Tribunal has no jurisdiction to order monetary compensation to her.
58I agree with the applicant’s counsel, and find that the Tribunal has jurisdiction under s.45.2(1)3. to order the City to pay compensation with respect to those expenses that were incurred on behalf of the minor applicant for his care and support. These are the expenses related to the costs of alternative camps and activities for the applicant the summer of 2008.
59While there was some evidence to suggest that the applicant was not charged for attending the Dolson camp, J.M. testified that the Dolson camp cost about $50-$60 per week. She testified that she was only able to find spots at the Craztech Camp at a cost of $208.95 for one week, and at a music camp at a cost of $150 for another week. Given that the applicant’s attendance at the music camp was August 4 – 8, 2008, a week when the respondents had offered he attend the Dolson camp, I will not award damages of the difference between $150 for the music camp and what the Dolson camp would have cost for that week.
60Given that the respondents led no evidence to contradict J.M.’s testimony that the Dolson camp would have cost $50-$60 per week, I find that the applicant is entitled to $148.95 to address the difference between the cost of the Craztech Camp and the cost of the Dolson camp.
61J.M. testified that, as a result of the applicant not being able to access the social and athletic activities that would have been part of the Dolson camp experience for her son, she bought swim passes for the applicant for which she produced receipts amounting to $24.40. Given that this amount is not in excess of what the applicant would have paid had he attended the Dolson camp, I do not agree that he is entitled to that amount.
62With no evidence having been led with respect to what exactly the extra gas costs amounted to, I am unable to order extra transportation costs.
63I agree with the submissions of the respondents’ counsel that there was no specific evidence led with respect to an amount of $500 in child care costs claimed in the Application, and I refuse to order compensation in that amount.
Compensation for J.M.’s lost wages
64J.M. testified that she needed to remain at home for some of the summer to look after the applicant once he was excluded from the Dolson camp because she was unable to find alternative daycare for him. She therefore lost wages in the amount of $130 per week for a total of $1690.
65J.M. has filed her own Application against the City to address the impact on her of the exclusion of the applicant from the Dolson camp in 2008. In an Interim Decision, the Tribunal agreed with the respondents and refused to add J.M. as a party to this Application or to consolidate her Application with this one; see B.M. v. Cambridge (City), 2009 HRTO 954.
66In his letter of August 12, 2009, filed after the hearing, the respondents’ counsel requests that the claims for remedies in J.M.’s Application, which was not before me, be addressed in this Decision on the basis of the evidence provided at the hearing of this Application.
67In my opinion, the claim for lost wages should be addressed as part of J.M.’s Application.
Future Compliance with the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)
68The applicant requested that he be permitted to attend the Dolson camp without an inclusion facilitator. I am not prepared to make this order because appropriate accommodation needs and options should be explored between the parties if and when the applicant intends to participate in the Dolson camp or any of the other of the City’s programmes. In order to ascertain what support he needs, the City may be required to conduct a consultation with medical and/or educational experts familiar with the applicant in a manner which would meet the procedural component of accommodating the applicant.
69At the time of filing his Application, the applicant requested that the respondent pay for a different camp in the future, but by the time of the hearing, the applicant led no evidence with respect to any costs associated with a different camp. Consequently, I can make no order with respect to any costs for a different camp.
70The applicant is also seeking an order that the City train its staff with respect to accommodating children with disabilities in its camp programmes. Ms. Riley testified about the plans the City had to address accessibility issues, including plans to implement by 2010 a new training programme for staff to learn about accessibility issues. I am satisfied that the City intends to seriously address training staff about accessibility issues, and therefore do not find it necessary to make an order with respect to such training.
71The Application seeks an order requiring that the City
(..) have a policy that addresses the specific needs of children with disabilities. The policy should address discipline and behaviour management for children with disabilities. The policy should encourage inclusion and promote the respect and dignity of the child and family. The City of Cambridge should implement a clear and accountable complaints process.
Given my findings in the circumstances of this case, I agree with the applicant that a review of the City’s policies, or lack thereof, would be beneficial. The policy on which the respondents focused in defense of their treatment of the applicant is the Progressive Discipline Process-Behaviour Management Policy which consists of a Code of Conduct and Progressive Discipline policies. These policies must be revised in order to ensure that special needs of disabled children are addressed. The respondents’ closing submissions refer to a developing Customer Service Policy which would include a formal complaints process, and this policy must also be reviewed to ensure that it may be used to address concerns of disabled campers and their families that accommodations are not adequate. The City is directed to retain an expert to review the draft of these revised and new policies, and to provide recommendations to the City before the policies are implemented.
ORDER
72The Tribunal makes the following order:
(a) Within 30 days of this Decision, the City shall pay $173.35 to the applicant for the out of pocket expenses reviewed above.
(b) Within 30 days of this Decision, the City shall pay $12,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity, feelings and self-respect.
(c) The respondents shall pay the applicant pre-judgment interest running from October 28, 2008, the date of the filing of the Application, on the sums in paragraphs a) and b) above, calculated in accordance with section 128 of the Courts of Justice Act.
(d) The City shall pay the applicant post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision.
(e) Within 60 days of this Decision, the City shall retain at its own expense a qualified consultant to review its practices and policies concerning accommodating children with disabilities in its camp programmes, and to make recommendations where they are not consistent with the Code.
63With respect to the payment of monetary damages, the parties may wish to have regard to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 as amended.
Dated at Toronto, this 18th day of May, 2010.
“Signed By”
Mary Truemner
Vice-chair