HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Thomas Arnold
Applicant
-and-
Gillian Adams o/a Dunedin House Bed & Breakfast and Eric Adams
Respondents
AND B E T W E E N:
Peter Grav
-and-
Gillian Adams o/a Dunedin House Bed & Breakfast and Eric Adams
Respondents
CASE RESOLUTION CONFERENCE Decision
Adjudicator: Caroline Rowan
Indexed as: Arnold v. Dunedin House Bed & Breakfast
APPEARANCES BY
Thomas Arnold and Peter Grav, Applicants ) Self-represented
Gillian Adams o/a Dunedin House Bed & Breakfast ) Martha Cook, Counsel,
and Eric Adams, Respondents )
1These are Applications filed pursuant to section 53(3) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) on December 30, 2008. The underlying human rights complaints were filed by Dr. Peter Grav and Mr. Tom Arnold with the Ontario Human Rights Commission on February 6, 2008 and were then abandoned upon the filing of these Applications with the Tribunal.
2In their Applications, the applicants alleged that they were denied accommodation at the Dunedin House Bed & Breakfast (the “Dunedin B&B”) by the respondents, Gillian Adams o/a Dunedin House Bed & Breakfast and Eric Adams, on the basis of their marital status and sexual orientation. At the Case Resolution Conference, both parties proceeded on the basis that the applicants’ complaints alleged a violation of section 1 of the Code, which concerns the right to equal treatment with respect to services, goods and facilities. That section had, in fact, originally been identified in Dr. Grav’s complaint filed with the Commission on February 6, 2008. In all the circumstances, I am satisfied that the responding parties understood the applicants’ complaints to relate to the denial of the bed and breakfast services provided by the Dunedin B&B and understood the complaints to relate to a breach of section 1 of the Code.
3The facts material to the Applications for the most part concern what was said during a telephone conversation between Dr. Grav and Mrs. Adams on August 7, 2007 when Dr. Grav called Dunedin B&B seeking accommodation for himself and his partner, Mr. Arnold.
4At the Case Resolution Conference held in this matter, I heard testimony from both applicants as well as from both respondents. In arriving at my findings of fact in this case, I have considered all of the evidence and have taken into account such factors as what seems most reasonable and probable in all of the circumstances having regard to the evidence as a whole.
The Evidence
5The Dunedin B&B is a small three bedroom bed and breakfast in Stratford, Ontario operated by the respondents. Sometime in or about 2006, the respondents decided that they would only rent out two of the three bedrooms. Mrs. Adams explained that their decision was based on the fact that they were getting older and that they found it much easier to have four guests, rather than six guests, for breakfast the next day. They therefore discontinued renting out their third smaller bedroom in 2007. Unlike the other two larger bedrooms, the third bedroom does not have an ensuite bathroom, but rather has a bathroom across the hall.
6In view of their decision, the respondents obtained a license for a two bedroom bed and breakfast when they renewed their bed and breakfast license for 2007, instead of the three bedroom bed and breakfast license they had obtained for 2006. According to their evidence, they paid the City of Stratford $150 for the license plus an additional $10 for each licensed bedroom.
7In early August 2007, the applicants were looking for accommodation in Stratford, Ontario for the nights of August 31 and September 1, 2007 for a planned trip to attend the Stratford festival. On the evening of August 7, 2007, they took turns calling various bed and breakfast inns looking for a room. The first three places they phoned had no rooms available on those nights. Dr. Grav then called the Dunedin B&B and spoke to Mrs. Adams. Mr. Arnold was present in the room when Dr. Grav placed the call and therefore was able to hear Dr. Grav’s side of the conversation.
8It is common ground that Mrs. Adams and Dr. Grav had a very pleasant conversation about Dr. Grav’s plans to spend the weekend in Stratford. The two of them discussed the plays he had seen and those that he wanted to see. There was also no dispute that Mrs. Adams initially told Dr. Grav that they were fully booked on the nights of August 31 and September 1, 2007. Mrs. Adams nonetheless wondered if she might be able to help out Dr. Grav by offering him the opportunity to stay in their unlicensed third bedroom. She did so because she took a liking to him during their telephone conversation and because she knew that he was unlikely to find accommodation in Stratford that particular weekend. Mrs. Adams assumed that Dr. Grav was travelling by himself based on the fact that he had not mentioned that he was looking for accommodation for two people.
9Before offering Dr. Grav the opportunity to stay in their third unlicensed bedroom, Mrs. Adams asked Dr. Grav to hold on a moment while she consulted with her husband. She then asked her husband (who was in another room at the time) if they could rent out the third bedroom. He responded “no” they could not, but then added that it was up to her if she wanted to rent it out. Mrs. Adams returned to the telephone and informed Dr. Grav that she could offer him a small bedroom with a double bed in it and its own bathroom across the hall for $100 a night.
10Mrs. Adams and Dr. Grav’s respective version of events differ at this point. According to Mrs. Adams’ version of the call, she told Dr. Grav that the room was unlicensed when she offered it to him. Dr. Grav however maintains that she told him that the room was unlicensed only later on in their conversation when she revoked the offer. Dr. Grav also contends that Mrs. Adams knew he was not travelling alone when she offered him the room. According to Dr. Grav, she asked him if the room she described would be suitable since presumably there were two of them. Mrs. Adams, on the other hand, denies saying this and instead indicates that she only became aware that Dr. Grav was not travelling alone after he agreed to take the room.
11According to Mrs. Adams, after she offered Dr. Grav the room, she asked him when he would be arriving and “got a shock” when he said “we” because she understood he was single. Mrs. Adams then asked Dr. Grav the name of his wife, to which Dr. Grav responded “partner” and “his name is Tom Arnold”. Mrs. Adams testified that she immediately felt that she had been deceived because the room is not really large enough for two people and is unlicensed. She also noted that they have had many couples with “alternative lifestyles” stay with them, but that those couples have always stayed in one of the two larger bedrooms and were always up front about their partners when they were booking.
12There is no dispute that Mrs. Adams told Dr. Grav that the room was not available after she inquired about the name of his wife and was told that Dr. Grav’s partner’s name is Tom Arnold. At that time, she explained to Dr. Grav that normally it would not be a problem and that she had rented to “other couples” before. When Dr. Grav inquired as to whether she would have withdrawn the offer if she found out he was black, Mrs. Adams said emphatically that she would not have done so. According to Dr. Grav, she then alluded to the fact that the problem was with the “other people” who would be staying that weekend and indicated that she would prefer not to rent the room that weekend.
13Mrs. Adams testified that the reason she changed her mind about allowing Dr. Grav to stay was because there were two people and the room is very small. Mrs. Adams noted that she was not concerned about a single man being in that room since it was perfectly adequate for a single man. Mrs. Adams however indicated that “it is a small room with a Victorian double bed in it” and that ”[she] felt it was totally inappropriate”. She also referred to her belief that “that bedroom for two men was too small.” Mrs. Adams also pointed out that the other two larger bedrooms were filled on the nights in question and that she thought it was “more obvious” if two people were in the unlicensed room. She felt it would endanger her because the other people staying at the bed and breakfast, whom the respondents know very well, were aware that the room was not licensed and would know that two men were staying in their unlicensed room, since everyone comes down for breakfast together. Mrs. Adams testified that she was concerned that the other guests might inadvertently “let it out of the bag” that she had rented out the unlicensed room and she was not going to take that risk.
14At the time of her telephone call with Dr. Grav, Mrs. Adams did not know what the penalty was for renting out the unlicensed room, but she believed they could lose their license if they were caught. She has since learned that there is a $5,000 fine per night set out in the City of Stratford by-law, which they could have faced if they were found to have operated their business in contravention of their bed and breakfast license.
15Both respondents confirmed in their evidence that they had rented out the third smaller bedroom to couples in the past when the room was licensed. They had however only rented that room to opposite sex couples, other than on one occasion when they inadvertently rented it out to a lesbian couple. Mr. Adams explained that, on that occasion, because the names of the individuals who made the reservation did not reveal their gender, they were not aware that they had rented the third smaller bedroom to a same sex couple until the two women presented themselves at the Dunedin B&B.
16Both applicants gave evidence in support of their claim for compensation arising from the alleged discrimination in this case. Dr. Grav testified regarding the profound effect that the telephone conversation on August 7, 2007 has had on him and on Mr. Thomas. More specifically, he indicated that, prior to the incident, they were fortunate to have lived and worked in an atmosphere in which their sexual orientation was not an issue. It was therefore a shock to them when on August 7, 2007 they were confronted with what they perceived to be discriminatory treatment. Dr. Grav testified that the incident has changed how they approach the world in that they have normally preferred to stay at small bed and breakfast inns, but that they now avoid them in favour of larger higher-priced hotel chains. They do so because they now fear showing up at 11 p.m. at night and being turned away. Dr. Grav also referred to the fact that he has through the application process been made to feel that he was either lying or was confused or was overly sensitive. He also referred to the inordinate amount of time required to pursue his complaint, which has forced him to relive and rehash the incident over and over again.
17According to Mr. Arnold’s evidence, the incident has impacted him in all of the same ways that Dr. Grav described in his testimony and has lead him to question how they are treated by others in their daily lives and whether their sexual orientation is a factor. Mr. Arnold noted that, while he was not a party to the telephone call with Mrs. Adams that night, he was present in the same room and heard one side of the conversation and that everything changed when his name was introduced into the conversation. Since the incident, he has felt less secure in his dealings with others.
Decision
18The issue in this case concerns whether the applicants’ sexual orientation and/or marital status were factors in the decision to withdraw the offer of bed and breakfast accommodation made to Dr. Grav for the nights of August 31 and September 1, 2007 at the Dunedin B&B and, if so, whether such denial of services breaches the provisions of the Code.
19The applicants referred to the following provision of the Code in support of their complaint:
Every person has a right to equal treatment with respect to services goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability.
The alleged discrimination in the present case involves a denial of the bed and breakfast service provided to guests who stay at the Dunedin B&B. As such, if the applicants’ sexual orientation and/or marital status were factors in the decision to withdraw the offer of bed and breakfast accommodation at the Dunedin B&B, the withdrawal of that offer amounts to a breach of sections 1 of the Code.
20The applicants argue that the respondents breached these provisions when Mrs. Adams withdrew the offer of accommodation made to Dr. Grav immediately after he told her that he did not have a “wife”, but rather had a “partner” named “Tom Arnold”. In the circumstances, the applicants contend that the respondents discriminated against them on the basis of their sexual orientation and on the basis of their marital status in that the offer of accommodation was withdrawn when Mrs. Adams discovered that Dr. Grav had a same-sex partner, rather than a “wife”.
21The respondents, for their part, deny that the applicants’ sexual orientation and/or marital status played any role in Mrs. Adams’ decision to withdraw the offer of bed and breakfast accommodation made moments earlier in her telephone conversation with Dr. Grav on August 7, 2007. Instead, the respondents maintain that the only reason that the offer was withdrawn was because the room was too small for two people and because it was unlicensed. The respondents also argue that there is no violation of the Code in the present case since the respondents were not providing either goods or services available to the public in that the third unlicensed bedroom was not available to the public. It was only offered to Dr. Grav and to him alone because Mrs. Adams took a liking to him when she spoke to him on the phone.
22I cannot accept the respondents’ suggestion that there can be no breach of the Code because the room in question was not generally available to the public and was only offered to Dr. Grav and him alone on that occasion. In this respect, I note that there is nothing in the Code which requires that the goods, services or facilities be “available to the public”. The prohibition against discrimination in those provisions is not therefore restricted in the manner suggested by the respondents’ counsel.
23The evidence before me does not further, in any event, suggest that the bed and breakfast service offered by Mrs. Adams to Dr. Grav over the telephone on August 7, 2007 was any different from the services normally offered by the Dunedin B&B to the general public. At the time Mrs. Adams offered to rent Dr. Grav the room for a set rate of $100 per night, the respondents had never even met Dr. Grav. Dr. Grav was someone to whom Mrs. Adams had spoken for only a few minutes before she offered to rent him a room. The evidence before the Tribunal indicates that Dr. Grav was like any other member of the general public who called the Dunedin B&B to rent a room, except that Mrs. Adams took a particular liking to him in the few minutes they spoke to one another on the telephone. The only difference between the offer of accommodation and services made to Dr. Grav and those made to others was that the offer contravened the bed and breakfast license. However, the fact that it contravened the bed and breakfast license does not alter the character of the offer, which was made and then withdrawn.
24In determining whether the respondents contravened section 1 of the Code, the issue is therefore simply whether the applicants’ sexual orientation and/or marital status played any part in the decision to withdraw the offer of bed and breakfast accommodation.
25Turning first to the allegations of discrimination made against Mr. Adams, who was named in his personal capacity, I note that the evidence in the present case makes clear that the decision both to offer bed and breakfast services to Dr. Grav and then to withdraw that offer was a decision made solely by Mrs. Adams. Mr. Adams’ only involvement was to advise Mrs. Adams that they could not rent out the unlicensed room and then to tell her that it was up to her whether she wished to do so. Given that Mr. Adams had no other input in the decision either to offer the services or to withdraw the offer of services, there is no basis on which to find that he breached the Code as alleged. The Applications against Eric Adams are accordingly dismissed.
26With respect to the allegations against Mrs. Adams o/a Dunedin Bed and Breakfast (“Mrs. Adams or the respondent”), little ultimately turns on the relatively minor differences between her account and that of Dr. Grav regarding the content of their telephone conversation on August 7, 2007. I accept that both endeavoured to recall the specifics of their conversation to the best of their ability and that the differences between them are simply the result of fading recollections. In all the circumstances, it seems more likely that Mrs. Adams is correct that no mention was made of another individual travelling with Dr. Grav until after she made the offer of accommodation given her distinct recollection that she was shocked when Dr. Grav referred thereafter to “we” in connection with the proposed reservation. It however seems likely that Dr. Grav is correct that the issue of the room being unlicensed was not raised until after the offer of bed and breakfast accommodation was withdrawn and that Mrs. Adams simply believes she mentioned it, since it was no doubt on her mind at the time she made the offer.
27However, even accepting Mrs. Adams’ version of events in its entirety, I am satisfied that the evidence before me indicates that the applicants’ sexual orientation and/or marital status played a part in her decision to withdraw her offer made to Dr. Grav. The fact is the respondent was prepared to rent to Dr. Grav the small unlicensed room, albeit not previously too small to accommodate opposite sex couples, until she learned he would be staying in it with his male partner. Upon learning that information, the offer was revoked. While the respondent has offered a variety of explanations for her change of mind, her evidence suggests that disclosure by other guests due to the “inappropriateness” of the arrangement played a part in her decision. On any analysis the applicants’ sexual orientation, either because she was uncomfortable renting the room to a same sex couple or because she was concerned the arrangement would appear “inappropriate” to her other guests and was consequently more likely to be discussed, was a factor in the respondent’s decision to revoke the offer.
28Having decided to ignore the licensing problem when she made the offer to someone she assumed was a single man, her decision to withdraw that offer when she learned that he was neither travelling alone nor with a “wife” contravenes the right to equal treatment without discrimination on the ground of “sexual orientation” and/or “marital status” required under the Code.
Remedy
29By way of remedy, the applicants seek: 1) an unequivocal personal apology for this act of discrimination; 2) an assurance that the owners of the Dunedin B&B understand the requirements of the Code; 3) a requirement that the Dunedin B&B take out membership in the Federation of Ontario Bed and Breakfast Association (“FOBA”) to show that it adheres to the FOBA’s Code of Ethics; and 4) $5,000 each as monetary compensation for the infringement of their Code-protected rights.
30Counsel for the respondent argued that the amount sought for monetary compensation is excessive and that a direction that the Dunedin B&B become a member of the FOBA is inappropriate given counsel’s assertion that such a direction violates the respondent’s Charter right to freedom of association.
31In reply, the applicants maintained their claim for an award of $5,000 each, but did not insist on a direction that the Dunedin B&B join the FOBA. Rather, they noted their concern in suggesting such relief was that they wished to ensure that the Dunedin B&B adheres to the requirements of the Code in future.
32Section 45.2 reads as follows:
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
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.
33In all the circumstances of this case, I find it appropriate to make a declaration that the respondent breached the Code when she withdrew her offer of bed and breakfast accommodation to Dr. Grav on August 7, 2007. I however decline to direct the provision of a personal apology, since I am of the view that a forced apology will serve no purpose which has not already been met by the declaration of a violation.
34I also find it appropriate to direct the respondent to post Code cards (which may be obtained from the Human Rights Commission at www.ohrc.on.ca) at the Dunedin House Bed & Breakfast where they are likely to come to the attention of guests and staff, if any. The respondent is directed to do so, if and when she resumes operating the Dunedin B&B (which property is currently for sale).
35I further direct the respondent to pay each of the applicants the sum of $1,500 as monetary compensation for the loss of their right to be free from discrimination. In determining that this is the appropriate amount of compensation, I have had regard to the following factors referred to by the Divisional Court in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), as being among the factors the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment.
36In the present case, even though the incident in question was of a short duration, the evidence before me indicates that it has had an on-going impact on how both the applicants view the world and relate to others. Their confidence in being treated equally without discrimination because of their sexual orientation and marital status has been shaken and they continue to feel vulnerable when booking accommodation at smaller establishments. They have also both now begun to question their treatment more generally and in particular whether any mistreatment is related to their sexual orientation.
Order
37Accordingly, the Tribunal:
declares that the respondent, Gillian Adams operating as Dunedin House Bed & Breakfast breached the Code on August 7, 2007;
directs the respondent, Gillian Adams operating as Dunedin House Bed & Breakfast, to pay, within 30 days of the date of this Decision, each of the applicants $1,500 as monetary compensation. 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;
directs the respondent, Gillian Adams operating as Dunedin House Bed & Breakfast, to post “Code cards”, provided by the Commission, inside the building in a location where they can be easily seen and read by guests and staff, if any, if and when Dunedin House Bed and Breakfast resumes operations; and
dismisses these Applications as against Eric Adams.
Dated at Toronto, this 11th day of February, 2010.
“Signed by”
Caroline Rowan
Member