McDonald v. Ripley’s Niagara Waterpark, 2010 HRTO 1456

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Don McDonald

Applicant

-and-

Ripley’s Niagara Waterpark o/a Great Wolf Lodge

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: July 5, 2010 Citation: 2010 HRTO 1456 Indexed as: McDonald v. Ripley’s Niagara Waterpark

WRITTEN SUBMISSIONS:

Don McDonald, Applicant ) On his own behalf Ripley’s Niagara Waterpark o/a Great ) Wolf Lodge, Respondent ) Leola Pon, Counsel

1This is an Application made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), accompanied by a Request for Interim Remedy. The respondent has filed a Response to the Request. The applicant was invited to reply to this Response and filed further submissions. This Interim Decision deals with the Request for Interim Remedy

2The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit; b) the balance of harm or convenience favours granting the interim remedy requested; and, c) it is just and appropriate in the circumstances to do so.

3In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal stated that since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”

4Normally, the Tribunal’s power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA v. 60 Montclair.

5The Tribunal will assume, without deciding, that the Application meets the first criterion above. In the circumstances of this case, it has not been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.

6The applicant works for the respondent as an Engineering Clerk at an indoor/outdoor waterpark and hotel located in Niagara Falls, Ontario. The interim remedy requested by the applicant is that “I be able to park in contractors park spaces at rear of building.” This is the same remedy he requests in his Application. The applicant states in support of his Request that he has walking-related disabilities, has a handicapped parking pass, but has been refused accommodation of his disabilities by the respondent.

7The material filed by the applicant and respondent establish that the issue of the applicant’s parking has been under discussion for some months. The applicant began working for the respondent in October 2008. At the time, the applicant told the respondent he had been an injured worker who had been retrained through the Workplace Safety and Insurance Board. He did not request accommodation of any disability or disclose any limitations or restrictions at the time, or for the first year or so of his employment.

8The applicant raised the issue of parking with the respondent over the fall and winter of 2009. The designated staff parking area is located at the farthest edges of the parking for the waterpark complex. The applicant told the respondent that he needed to park closer to the building. There may be some dispute about when he informed the respondent that he had a mobility-related disability but it is not in dispute that in February 2010, the applicant made it aware that he had a handicapped parking permit. He was told that he could use the handicapped spaces when they were available and asked to provide medical support for his request for parking accommodation.

9The applicant completed the respondent’s Disability Accommodation Request (DAR) form, stating that the accommodation he sought was “to park in handicap parking spot while at work, and/or the closest spot to building if handicap is unavailable.” The portion completed by his doctor states that his prognosis is “stable” and that there are no current treatment plans. The doctor states, in describing the type of accommodation required “walking as tolerated, standing as tolerated, no ladders” but does not specify any limits on the distances that the applicant may walk or time the applicant may stand. The doctor also states “patient would benefit from parking accommodation to avoid walking an excessive distance.”

10The respondent offered to the applicant that he could park in the handicapped parking spaces when they were available, and when they were not, he would be required to use the staff parking area. The applicant refused this offer and stated that he wished to be able to park in contractor spaces when no handicapped spaces were available. The contractor spaces referred to are designated spaces at the rear of the building for the purpose of loading and off-loading contractors’ equipment, supplies and materials. The respondent indicated in a letter that it believed its offer was consistent with the doctor’s information. More recently, as of May 14, the respondent told the applicant that it would agree to the applicant parking in the closest available guest parking space when a handicapped space was unavailable.

11I am not convinced that the applicant has shown that the balance of harm or convenience favours the interim remedy requested. The respondent has agreed to the parking accommodation requested by the applicant in the DAR, which is that he be able to park in handicapped spaces or, in the alternative, the closest space in the guest parking lot. The interim remedy sought is that the applicant be able to park in contractors’ spaces when handicapped spaces are unavailable. In the Request, the applicant describes the harm that would ensue if the request is not granted as “physical pain would be increased significantly.” However, the medical evidence does not address this. At its highest, the medical evidence states that the applicant should avoid walking “an excessive distance,” but it does not support the applicant’s assertions about the impact of not receiving the interim remedy he seeks.

12Neither does the rest of the evidence support the applicant’s submissions on the balance of harm and convenience. There is some disagreement about the availability of handicapped parking spaces. The respondent states that its security records show that the applicant has always been able to park his vehicle in an accessible parking spot since he started parking there in March 2010. The applicant disputes this, and states that there have been two occasions when he has not had access to a handicapped parking space, but he does not state where he parked as an alternative.

13The respondent has provided evidence of the harm or inconvenience it would incur if the interim remedy is granted, relating to the impact of reserving space for the applicant in the contractors’ parking area, the planning and implementation of a parking spot there and the safety issues involved in allowing parking in a contractors’ zone. On balance, given the accommodation offered by the respondent, and the evidence before me, I am unable to find that the harm or convenience favours granting the request.

14For the same reasons, the material does not establish that an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

15The applicant is once again reminded that all correspondence sent to the Tribunal, including email correspondence, must be copied to the respondent. The Tribunal will not consider any material absent proof of delivery on the respondent.

16I am not seized of this matter.