Allarie v. Rouble, 2010 HRTO 61

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexander Allarie

Applicant

-and-

Keith Rouble and Leslie Rouble

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: January 20, 2010

Citation: 2010 HRTO 61

Indexed as: Allarie v. Rouble

APPEARANCES

Alexander Allarie, Applicant ) On his own behalf

Leslie Rouble and ) On their own behalf

Keith Rouble, Respondents )

Background

1Alexander Allarie (the “applicant”) filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on January 26, 2009 alleging discrimination in relation to a service on the ground of disability. The hearing into the Application took place on December 1, 2009.

2The original respondent to this Application was the Granary, a bulk and natural food store located in Carleton Place, Ontario (“Granary”). Keith Rouble and Leslie Rouble were the owners of the store in August 2008, when the events giving rise to this Application occurred. The respondents indicated in their Response that they are no longer the owners of the Granary and that the new owners did not assume responsibility for the Application as a condition of the sale. As a result, the Application has been amended removing the Granary and adding the Roubles as the proper respondents.

3There is a long and unfortunate history to this Application and it was obvious from the outset of the hearing that this issue has engendered considerable anger, hostility, and confusion. The respondents were particularly hostile toward the applicant, the Tribunal and the human rights system in general. In her opening statement Ms. Rouble expressed considerable anger that the Tribunal would “gladly entertain Mr. Allarie’s ludicrous complaint” and outrage at being “compelled” to attend the hearing to be “interrogated” by the government.

4As a result, I took some time to explain to the parties the provisions of the Code which relate to the Application, the mandate of the Tribunal to apply a fair, just and expeditious process in resolving Applications and the statutory requirement to provide the parties with an opportunity to make oral submissions before the Tribunal disposes of an Application that is within its jurisdiction. I also described to the parties how the hearing would be conducted and reinforced that they would have a full opportunity to be heard in relation to the circumstances underlying the Application.

5The hearing lasted for approximately one and a half hours. I heard evidence from the applicant and both respondents, although it was the Ms. Rouble who gave the primary evidence for the respondents. I also heard evidence from two witnesses for the respondents: Ms. Robillard, a fellow merchant who witnessed a key interaction between the applicant and respondents, and Ms. Klawitter, a customer of the respondents who has a visual impairment and is assisted by a service dog.

6This Application involves one event in early August 2008. Mr. Allarie alleges he entered the Granary with a dog who assists him with his disability-related needs. He alleges that he was asked to leave the store because of the presence of his dog. The respondents say that the dog had nothing to do with the dispute and that the applicant was asked to leave because he was behaving inappropriately toward them. While this one event forms the basis of the Application before the Tribunal, there were previous interactions between the parties in 2006 which assist in understanding the context of the current allegations. As a result, both parties were permitted to describe the history of the interactions between them despite the fact that those interactions are not the subject of this Application before the Tribunal.

7For the reasons that follow, I have determined that this Application should be dismissed. The one interaction which is captured by this Application involves a brief incident between the parties. There is sufficient evidence to establish that Mr. Allarie was asked to leave the store that day because of his behaviour and not because of the presence of his dog.

8However, that finding, on its own, will not resolve the ongoing dispute between Mr. Allarie and the merchants he interacts with on an ongoing basis. In my view, it is consistent with the remedial nature of the Code and the mandate of the Tribunal to bring Applications to a fair, justice and expeditious resolution, to provide the parties with some guidance which may assist them in avoiding a new Application in the future.

Evidence

9Mr. Allarie has a Chihuahua he calls “Dee-O-Gee”. He gave evidence that he lives with a number of physical and psychiatric disabilities including anxiety, depression, claustrophobia, agoraphobia, and symptoms of obsessive compulsive disorder, which he feels are greatly improved by the presence of his dog. He acknowledges that his dog has never been formally certified as a service dog as compared to, for example, a dog that is trained and certified by the Canadian National Association for the Blind (“CNIB”). In his evidence, Mr. Allarie said that he understood why people would question the role a small Chihuahua would play in assisting him with his medical needs.

10Mr. Allarie gave evidence that his dog has had a significant impact on his symptoms and that he is less stressed, more relaxed, more outgoing and has fewer thoughts of suicide. He described the dog as assisting him with aspects of his daily routine such as eating and going to bed at regular times as well as waking him up when he is having a bad dream or has fallen asleep on the couch. Mr. Allarie described the dog as “working” when it is sitting in his lap and giving him a focal point. He also testified that he needed to have his dog with him when he shopped at the Granary.

11Mr. Allarie started looking into adopting a service dog in 2005 and purchased Dee-O-Gee from Travelling Paws Kennel on July 27, 2005. He produced a copy of the adoption agreement which describes the dog as “service dog (companion)”. He also produced a copy of the receipt from the Corporation of Carleton Place showing that he was not charged for a licence tag for his “service dog”.

12The medical documentation in support of Mr. Allarie’s evidence consisted of two doctor’s notes. The first, dated July 28, 2005 from Dr. Murty, the applicant’s family doctor, says simply that “Alex Allarie has a service dog for medical reasons”. The second note dated September 11, 2006 from the same physician contains further information. In that note Dr. Murty explains that the applicant has “(chronic mechanical) low back pain syndrome, secondary to MVA in 1983” as well as “anxiety and depression disorder” and that “acquisition of his service dog, Chihuahua which he calls D.O.G. will be of great benefit with various medical conditions described above”.

13Mr. Allarie also produced a letter dated March 2, 2006 from the Leeds, Grenville & Lanark District Health Unit responding to his inquiry about the use of service dogs in areas where food is served or sold. The letter, signed by a Public Health Inspector, advises that section 60(2)(b) of the Health Protection and Promotion Act, R.R.O. 1990, Regulation 562, a copy of which was attached to the letter, “clearly states that if you can provide or request a letter from a physician or nurse confirming your need for a service dog then the dog is permitted in the food premises.”

14I mention these documents, not to suggest that they define what constitutes a genuine service dog, but rather as evidence of what the applicant relied on in asserting that he had a right to enter the Granary with his dog.

August 2008

15The allegations contained in the Application relate to one event which occurred between the parties in August 2008.

16In August 2008 Mr. Allarie testified he put a “service dog” cape on his dog, walked into the Granary and waited to be served. He saw that Mr. Rouble was in the back room of the store. He admits that he raised his voice and said “are you going to serve me or not?” and says that Mr. Rouble waved his hand at him in a dismissive manner. According to Mr. Allarie, Mr. Rouble then came up to the front of the store and asked him to leave at which point he asked Mr. Rouble for the phone and called the police.

17Ms. Rouble testified that on August 1, 2008, Mr. Allarie entered her store, swore at her, demanded service and threatened to call the police if he was denied service. Ms. Rouble described Mr. Allarie as belligerent, aggressive and threatening and was concerned that he was intoxicated. She testified that she quickly bagged some salt and pepper for him and that he threw some coins at her in return. Ms. Rouble testified that she was terrified and that it was Mr. Rouble and not Mr. Allarie, who called the police.

18Both respondents gave evidence that the events of August 2008 had nothing to do with Mr. Allarie’s dog. They testified that he was asked to leave because of his behaviour.

19Angela Robillard, co-owner of the store next door to the Granary, testified that she observed Mr. Allarie as he approached the Granary on the day in question. She watched him put a service dog cape on his dog and she followed him to the store. She stood just behind Mr. Allarie who was a foot or two inside the door. Ms. Robillard heard him demand to be served and swear at Ms. Rouble who was behind the cash. Mr. Rouble, who was near the front door, responded that Mr. Allarie would have to leave the store or he would call the police. According to Ms. Robillard, Mr. Allarie responded “go ahead” and swore again at the respondents. Ms. Robillard said that she could see Ms. Rouble hurrying behind the counter preparing Mr. Allarie’s order. She was “shocked” to observe Mr. Allarie “wind up” and throw a handful of coins at Ms. Rouble, some of which hit her in the face. Ms. Robillard described the female respondent as shaking and crying. Ms. Robillard was not interviewed by the police officer when he arrived.

20The Tribunal also heard evidence from Noella Klawitter, who described herself as visually impaired and assisted by a service dog. Ms. Klawitter gave evidence that the respondents had always gone “above and beyond” in assisting her when she was in the store. When asked by Mr. Allarie whether she had ever been asked for identification by the respondents, she answered that she had not, although she carries identification with her and at all times her service dog is clearly marked and harnessed.

Events of 2006

21Both parties gave evidence that the dispute in August 2008 was not an isolated incident. Mr. Allarie testified that in 2006 he shopped at the Granary with his dog and was asked by the respondents to leave his dog outside the next time he came to the store. He responded that he had a “service dog” and showed the respondents the 2005 doctor’s note. The next time he attempted to shop in the store with his dog Mr. Allarie alleges that he was denied entry, and, as a result, he filed a complaint with the Ontario Human Rights Commission under the provisions of the Code that existed at the time. That complaint was withdrawn, according to Mr. Allarie, when he received a copy of the response from the respondents indicating that they would accept the dog in their store if he showed “proper documentation” proving that the dog was a bona fide service dog.

22Mr. Allarie testified that he had no difficulty the next time he entered the store sometime in October 2006. Neither respondent was in the store at the time, however a family member who was working in the store reviewed the documentation and allowed him to shop with his dog.

23Ms. Rouble gave evidence that Mr. Allarie came into the store for the first time in February 2006. She admits that she asked him to leave his dog outside the store and that she questioned whether he had a bona fide service dog because it was not apparent to her that the dog was assisting with any disability-related needs. According to Ms. Rouble the dog was not marked and was not wearing a harness or service coat which might indicate that the dog was “working”. Ms. Rouble also gave evidence that she was very concerned that dog was allowed to wander in the store on a retractable leash sniffing at their bulk products.

24Ms. Rouble denied that Mr. Allarie ever provided her with any proof that his dog was a service dog. She later admitted, however, Mr. Allarie had shown her the note written by his doctor in 2005. In her view this was insufficient evidence that Mr. Allarie had a service dog and required him to produce evidence that the dog had been trained in the manner, for example, that dogs are trained by the CNIB. Ms. Rouble gave evidence that, despite her concerns about the dog, on the several occasions in 2006 when Mr. Allarie attempted to shop at the Granary with his dog, he was never denied service.

Analysis

25The question in this case is whether the applicant can prove that he experienced discrimination on the basis of his disability. The burden is on Mr. Allarie to prove that he has a disability, that his dog assists him with his disability-related needs, that he was treated adversely by the respondents, and that his disability was one of the factors in the treatment he experienced.

26Section 1 of the Code provides that: “Everyone has a right to equal treatment with respect to services… without discrimination on the basis of…disability.” The respondents were of the view that the applicant was required to prove that a service had been denied. The language of the Code is broad and includes the manner in which a person is treated while receiving a service, even if the service is not denied.

27The definition of disability under section 10(1) of the Code contemplates circumstances where a person might physically rely on an animal to assist with their disability-related needs. Disability also clearly includes a condition of mental impairment. There is nothing in the Code which limits the definition of a service animal to one which is trained or certified by a recognized disability-related organization.

28Mr. Allarie gave evidence that he suffered from anxiety and depression disorder. There were two medical notes filed with the Tribunal which support the applicant’s testimony that he suffers from disabilities which are protected by the Code and that his dog assists him in dealing with the symptoms of those disabilities. There was no evidence called to dispute the nature of Mr. Allarie’s disabilities or his reliance on his dog for assistance with his symptoms. The respondents simply asserted that the Chihuahua did not look or act like a service dog.

29I am satisfied Mr. Allarie has established that he has a disability and his dog assists him with his disability-related needs. It is not disputed that he was asked to leave the store. What remains for Mr. Allarie to prove is that his disability was a factor in the way that he was treated in August 2008.

30On this issue, I found Ms. Rouble, who gave the primary evidence for the respondents, extremely hostile and prone to exaggeration. Similarly, Ms. Robillard was hostile and argumentative with the Tribunal, initially refusing to comply with an order excluding witnesses. During her testimony she made it clear that she had her own concerns with Mr. Allarie as did several other local merchants. Her hostility toward Mr. Allarie was palpable and, after giving her evidence and returning to her seat, she had to be asked to stop interjecting in the proceeding to advocate for the respondents. In my view, the credibility of both Ms. Rouble and Ms. Robillard was affected by their approach to giving evidence before the Tribunal.

31By contrast, Mr. Allarie was forthright, admitted when he could not remember a date or fact, was not prone to exaggeration and indicated that he could understand why members of the public might have difficulty accepting his dog as a service animal.

32However, Mr. Allarie did admit to standing in the doorway of the store, raising his voice to the respondents and confronting them over his perception that they were not serving him in a timely fashion. This is not a situation where a customer entered the store, made an attempt to shop and then was asked to leave by the merchant. By his own admission, Mr. Allarie stood in the doorway and shouted “Are you going to serve me or not?”. Mr. Allarie also had difficulty recalling the facts and dates in question while he was giving his evidence which contributed to his inability to rebut the evidence of the respondents.

33In addition, the police occurrence report prepared by Officer Beaton who attended at the scene indicated that the officer spoke with Mr. Rouble and was advised that the applicant was asked to leave the store because he was “rude and confrontational” and because of concerns that he was impaired. While the officer was not called to give evidence, I accept that this document was prepared contemporaneously with the events and is broadly consistent with the respondents’ explanation for asking Mr. Allarie to leave the store.

34While I believe the accounts given by Ms. Rouble and Ms. Robillard were exaggerated, there is sufficient evidence to conclude that the applicant provoked a confrontation with the respondents and that he was asked to leave the store as a result.

Conclusion

35There is clearly a connection between the events of 2006 and 2008. With respect to the events of 2006, in my view it was not unreasonable for the respondents to ask for identification and medical documentation to support the applicant’s assertion that his Chihuahua functions as a service dog. The dog was not marked and it was not behaving in a manner that would make it obvious the dog was working. However, it would be unreasonable to refuse to accept a doctor’s note, such as the one produced by the applicant, as evidence of his reliance on a service animal. This observation is subject of course, to the applicant conducting himself appropriately while he and his dog are present in a store.

36To allow merchants to refuse service to someone with medical evidence of the need for a service animal would leave both the merchants and their customers in an untenable position. The merchants would be looking behind the medical evidence and using their own observations to assess the bona fide nature of the service provided by each animal. The customers who rely on their service animals would never be sure which standards would be applied to them. People with less visible disabilities, including psychiatric disabilities, could be subject to more onerous standards than others. The circumstances of this case suggest that a balance can be struck between merchants and their customers by permitting merchants to request medical evidence where it is not immediately obvious that the animal is supporting disability-related needs.

37Context is critically important in human rights cases. In Rodrup v. J. Werner Property Management, 2009 HRTO 1372, the Tribunal upheld an application involving a small dog who provided support for an owner with a hearing impairment. In that case a landlord attempted to evict the owner, in part because of the dog’s barking. In that case the applicant was able to prove that the dog’s barking was part of the service the animal performed to assist him with his hearing impairment. As a result, the Tribunal upheld that part of the Application.

38In this Application, there is no evidence that the dog or the applicant’s disabilities were a factor in the decision to ask him to leave the store during the incident in August 2008. I have no doubt that the overall context for the hostility between these parties goes back to the events in 2006 when the presence of the applicant’s service dog was clearly an issue. While the past dispute may have been part of the overall context, in my view on the occasion relevant to this Application the applicant provoked a confrontation with the respondents as soon as he walked into the store, and as a result, he was asked to leave as any customer would be under those circumstances.

39For those reasons, the Application is dismissed.