Mary Clare Rutledge v. Fitness One Peter Inc. and Marcus Auguste, 2010 HRTO 2039

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Clare Rutledge

Applicant

-and-

Fitness One Peter Inc. and Marcus Auguste

Respondents

decision

Adjudicator: Keith Brennenstuhl

Date: October 7, 2010

Citation: 2010 HRTO 2039

Indexed as: Rutledge v. Fitness One Peter

APPEARANCES

Mary Clare Rutledge, Applicant ) Dijana Simonovic, Counsel )

Fitness One Peter Inc. and ) No one appearing

Marcus Auguste, Respondents )

ii

1This is an Application filed January 9, 2009 under section 34 of the Human Rights Code, R.S.O, c. H. 19, as amended (the “Code”). The Application alleges that the applicant was subjected to discrimination in relation to services on the basis of disability contrary to section 1 of the Code.

2The respondents were not present at the hearing. In accordance with its usual practice the Tribunal waited until 10:00 am before proceeding.

3I am satisfied that the respondents had notice of the hearing. The respondents filed a Response which set out their contact information. In addition to the Confirmation of Hearing notice which was sent to the address set out in the Response, the Tribunal issued several other notices in this matter. None of them were returned to the Tribunal.

BACKGROUND

4In July 2007 the applicant attended at the Fitness One location on Peter Street in Toronto and spoke to the manager about memberships. During the course of this conversation she informed the manager of her allergy to latex and explained that it was a severe allergy and that if exposed to latex she could suffer an anaphylactic reaction. According to the applicant, after being assured by the manager that her allergy would be accommodated, she signed the contract with the facility for a fitness membership.

5The applicant indicates that she used the facilities on a regular basis and without incident from July 2007 until January 2008. However, in January 2008 she walked into the facility with a friend and there were latex balloons. The applicant testified that she had to leave the building immediately.

6While waiting outside for her friend she was approached by the personal respondent, Marcus Auguste, who recently had been appointed the new manager for the facility. He explained to the applicant that he was unaware of her allergy and asked for information regarding her allergy. The applicant expressed her frustration with finding the balloons in the facility and was accused by Mr. Auguste of being confrontational.

7Following this incident, the applicant and Mr. Auguste exchanged a series of e-mails culminating in an e-mail from Mr. Auguste on January 14, 2008 informing the applicant that the club had removed all balloons from its facility and that he would put up a sign on the facility door stating that it was “balloon free”. Mr. Auguste also advised the applicant that he could not ensure that the facility would be latex free at all times as members sometimes brought balloons into the facility but indicated that she would be made aware of latex in the facility so that she could choose not to come to the facility for a period of time sufficient to allow the contamination to dissipate. The applicant indicates that she decided to maintain her membership while she determined how this arrangement would work out.

8Between the end of January and September 2008 the applicant attended the facility without incident. According to the applicant on September 5, 2008 she received an e-mail from Mr. Auguste advising her that a latex balloon had been brought into the facility and that her membership was being cancelled.

ANALYSIS AND DECISION

9I find that the unchallenged evidence of the applicant, together with the allegations set out in the Application as further expounded upon at the hearing, establish there was a violation of the Code.

10I am satisfied that the provision of fitness facilities is a service within the meaning of the Code. I am also satisfied that the applicant suffers from a disability in the form of a severe latex allergy where exposure to latex could result in an anaphylactic reaction. With no contrary evidence before me I must conclude that the respondents terminated the applicant’s membership at the fitness centre because they were no longer prepared to accommodate the applicant’s disability. I find that this constitutes an infringement of the applicant’s rights under section 1 of the Code.

REMEDY

11The applicant seeks to be compensated for the initial fee in the amount of $198.22 that she paid to the corporate respondent on becoming a member of the fitness club. Given that the applicant specifically asked for this remedy in her Application and given that the respondents have not appeared at the hearing and have not challenged the applicant’s request, I find that an award of $198.22 representing the applicant’s out-of-pocket expense to join the fitness club is, in the circumstances, appropriate.

12The applicant also seeks compensation for the infringement of the Code and injury to dignity, feelings and self-respect in the amount of $10,000.00. She testified that the abrupt cancellation of her membership was a tremendous shock. She had enjoyed her membership not only for the facilities but for the socialization as well. The cancellation was a stark reminder of the struggles she faces every day to gain inclusion in environments that are often indifferent and sometimes hostile to her needs. The applicant testified that as a result of her experience she lost trust in others, fell into depression, was no longer willing to advocate on her own behalf and became reclusive.

13In recent cases finding discrimination in the provision of services on the ground of disability, the Tribunal has awarded monetary compensation ranging from $300.00 to $12,500.00: See for example M.O. v. Ottawa Catholic District School Board, 2010 HRTO 1754; B.M. v. Cambridge (City), 2010 HRTO 1104; Wozenilek v. 7-Eleven Canada, 2010 HRTO 407; Schussler v. 1709043 Ontario, 2009 HRTO 2194; Patterson v. Gowan Property Management, 2009 HRTO 2025; and Donnelly v. Spinz Coin Laundries, 2009 HRTO 754.

14I find that $2,500.00 is an appropriate amount to compensate the applicant for the intrinsic value of the infringement of her rights. In arriving at this award, I have been guided by the principles for determining damage awards under the Code as outlined in this Tribunal’s decision in Arunachalam v. Best Buy Canada 2010 HRTO 1880. In addition I have had regard to the awards given in the above cases, the similarities and differences between those cases and this one, the vulnerability of the applicant and the nature of the events.

15The applicant does not seek redress against the personal respondent. In my view, the personal respondent was acting in the course of his employment with the corporate respondent. There is no issue with respect to the corporate respondent’s deemed or vicarious liability. The remedy will be awarded against the corporate respondent only.

ORDER

16The following Order is made:

(a) Within 30 days of this Decision, the corporate respondent shall pay $198.22 to the applicant for out-of-pocket expenses referred to above;

(b) Within 30 days of this Decision, the corporate respondent shall pay $2,500.00 to the applicant as compensation for infringement of the Code and injury to her dignity, feelings and self-respect;

(c) The corporate respondent shall pay the applicant pre-judgment interest running from January 9, 2009, 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; and,

(d) The corporate respondent 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.