Palangio v. Cochrane (Town) (No. 4)
TR-0761-09
2011-08-11
2011 HRTO 1491
Ontario Human Rights Tribunal
CHRR Doc. 11-1991
Michael Palangio Applicant
v.
Corporation of the Town of Cochrane and Lawrence Martin Respondents
Before: Human Rights Tribunal of Ontario, David Shannon
Appearances by:
M. Paul Morrissey, Counsel for the Applicant
David Lanthier, Counsel for the Respondents
Summary
DISABILITY — discriminatory provision of services on the basis of hearing impairment — PUBLIC SERVICES AND FACILITIES — discriminatory treatment by municipal government — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — Meiorin/Grismer test for reasonable accommodation — EVIDENCE — credibility — LIABILITY — personal liability — DAMAGES — damages assessed for injury to dignity and self-respect — determining quantum by considering previous awards — REMEDIES — human rights procedures review
The Human Rights Tribunal of Ontario ruled that the Town of Cochrane discriminated against Town Councilor Michael Palangio by failing to provide a sound system that adequately accommodated his hearing impairment.
Mr. Palangio was elected to the Council of the Township of Cochrane in 2003. Mr. Palangio has a hearing impairment and he needed accommodation in order to be able to hear and participate fully in Council meetings.
Mr. Palangio testified that from the time he was elected to Town Council he repeatedly requested headphones or a speaker system to accommodate his disability. In response, the Council Chambers were outfitted with microphones, and a loop was added that would allow feedback to headphones from the other microphones. However, the headphones bothered Mr. Palangio's ears, and although he replaced them with earbuds, the sound system did not accommodate his needs. He could not follow the full Council deliberations and he continued to request the installation of a speaker system.
Mr. Palangio also tried to compensate for his hearing difficulty by taping the Council meetings, so that he could play them back later at the volume he needed and be sure that he had understood all of the interventions. In February 2006, the tape recorder he used fell out of his pocket, and made a loud noise in the Council Chamber. He put it on the table, but was asked to remove it from the room. The tape was removed from his recorder, and he was humiliated in a public meeting. He was told that he could not have a tape recorder due to privacy legislation and concerns by other councilors that their statements could be taken out of context.
The respondents argued that they had fully accommodated Mr. Palangio with the earbuds system, and that the tape recorder was not a tool to assist with Mr. Palangio's hearing impairment. According to the respondents, Mr. Palangio was recording the meetings surreptitiously and wished to use the taped conversations to breach confidentiality and provide information to attack town officials in a local publication. They also denied that Mr. Palangio requested a speaker system.
The Tribunal found that Mr. Palangio had requested a speaker system and had informed the respondents that the ear buds were not sufficient. The respondents were aware of Mr. Palangio's hearing impairment and failed to make inquiries into how the applicant could be accommodated. Further, while one of Mr. Palangio's purposes for using the tape recorder might have been to assist him in criticizing town officials, it was also a tool that helped him to accommodate his hearing impairment.
The Tribunal found that, without a workable speaker system or tape recorder, the respondents created a handicapping environment that put Mr. Palangio in a profoundly disadvantageous position as a Town Councilor. The Town failed to meet its duty to accommodate Mr. Palangio.
The Tribunal awarded Mr. Palangio $10,000 as compensation for the infringement of his dignity, and ordered the Town of Cochrane to review its policies and complaint procedures related to the duty to accommodate.
See also (No. 1) (2010), CHRR Doc. 10-0221, 2010 HRTO 197, (No. 2) (2010), CHRR Doc. 10-1435, 2010 HRTO 1221 and (No. 3) (2010), CHRR Doc. 10-1504, 2010 HRTO 1278.
CASES CITED
ADGA Group Consultants Inc. v. Lane (2007), 61 C.H.R.R. D/307, 2007 HRTO 34: 44, 56, 58
ADGA Group Consultants Inc. v. Lane (2008), 64 C.H.R.R. D/132, 2008 CanLII 39605 (Ont. Div.Ct.): 61
Abdallah v. Thames Valley Dist. School Board (2008), 65 C.H.R.R. D/91, 2008 HRTO 230: 65
Arunachalam v. Best Buy Canada Ltd. (No. 2) (2010), 71 C.H.R.R. D/126, 2010 HRTO 1880: 57
British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257: 24
Brown v. Trebas Institute of Ontario Inc. (2008), 62 C.H.R.R. D/329, 2008 HRTO 10: 62
Clennon v. Toronto East General Hospital (No. 3) (2010), 70 C.H.R.R. D/58, 2010 HRTO 506: 66
Cochrane (Town) v. Palangio, [2003] O.J. No. 3765 (QL) (Div.Ct.): 8, 60
Dodds v. Sharks Sports Pub (2007), 60 C.H.R.R. D/249, 2007 HRTO 17: 61
Dunn v U.T.U., Local 104 (2008), CHRR Doc. 08-1065, 2008 HRTO 405: 66
Farris v. Staubach Ontario Inc. (No. 1) (2011), 72 C.H.R.R. D/327, 2011 HRTO 979: 66
Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 29
Giguere v. Popeye Restaurant (No. 4) (2008), 62 C.H.R.R. D/147, 2008 HRTO 2: 64
Harriott v. National Money Mart Co. (2010), 70 C.H.R.R. D/1, 2010 HRTO 353: 61
Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205: 42
Khan v. 820302 Ontario Inc. (2010), CHRR Doc. 10-0302, 2010 HRTO 265: 61
Lopetegui v. 680247 Ontario Ltd. (2009), CHRR Doc. 09-1705, 2009 HRTO 1248: 66
Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 51 C.H.R.R. D/68, 2004 BCHRT 225: 22
Persaud v. Toronto Dist. School Board (No. 4) (2008), CHRR Doc. 08-278, 2008 HRTO 31: 47
Robdrup v. J. Werner Property Management Inc. (2009), 68 C.H.R.R. D/22, 2009 HRTO 1372: 43
Seguin v. Great Blue Heron Charity Casino (No. 2) (2009), 69 C.H.R.R. D/325, 2009 HRTO 940: 57, 66
Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111, [2001] O.J. No. 297 (QL) (Sup.Ct.): 53
Sigrist v. London Dist. Catholic School Board (No. 1) (2008), CHRR Doc. 08-104, 2008 HRTO 14: 47
Simpson-Bowlyn v. Commissionaires Great Lakes (No. 2) (2009), CHRR Doc. 09-1850, 2009 HRTO 1362: 62
Tulul v. King Travel Can Ltd. (No. 3) (2011), 72 C.H.R.R. D/131, 2011 HRTO 438: 66
Turnbull v. Famous Players Inc. (No. 1) (2001), 40 C.H.R.R. D/333, 2001 CanLII 26228 (Ont. Bd.Inq.): 65
Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, 2010 SCC 27: 55
Vasu v. Toronto Community Housing Corp. (No. 2) (2010), CHRR Doc. 10-0403, 2010 HRTO 344: 65
Wall v. Lippé Group (2008), 64 C.H.R.R. D/26, 2008 HRTO 50: 22
Williams v. Children's Aid Society of Toronto (No. 4) (2011), 71 C.H.R.R. D/418, 2011 HRTO 265: 49
Winter v. Arnprior (Town) (No. 1) (209), CHRR Doc. 09-0962, 2009 HRTO 713: 47
LEGISLATION CITED
Canada
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11: 55
Ontario
Accessibility for Ontarians with Disabilities Act, S.O. 2005, c. 11: 18
Courts of Justice Act, R.S.O. 1990, c. C.43
s. 128: 67
s. 129: 67
Human Rights Code, R.S.O. 1990, c. H.19
s. 5: 2
s. 5(1): 19
s. 17(2): 22
s. 41(1)(b): 53
s. 45.2(1): 52
s. 53(5): 1
Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32: 44, 64
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 17.1: 66
1This is an application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), dated November 9, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on April 3, 2006.
2The application alleges that the respondents discriminated in employment on the basis of disability, contrary to s. 5 of the Code, when they failed to accommodate his hearing impairment needs during Town Council meetings. In particular, the applicant alleges that the respondents' refusal to install a usable speaker system and to allow him to record a Council Chambers Town Hall meeting on February 17, 2006, and at other meetings was discriminatory.
3The respondents assert that the applicant did not request that a speaker system be installed or improved and they submit that the applicant's hearing limitations do not require him to record the Town Council meetings. The respondents alleged that the applicant never asked that he be able to record the meetings for accommodation purposes. The respondents allege that the applicant was instead attempting to surreptitiously tape record the meetings for ulterior purposes.
4The applicant advised during the hearing that he wished to withdraw his application against the respondents, Mr. Demers, the Town Chief Administrative Officer, and Mr. Cousineau a member of Town Council at the time of the alleged facts. He maintained his allegations against the Town of Cochrane and its Mayor, Lawrence Martin. The respondents did not object to the withdrawal of the application, and I could find no reason for maintaining the application as against them. In the circumstances, the application against the respondents, Pierre Demers and Rheal Cousineau, is withdrawn with leave and the style of cause is amended accordingly.
ISSUES FOR DETERMINATION
5The parties agree that the applicant has a disability within the meaning of the Code due to his hearing impairment. I must therefore determine based on the evidence whether the applicant has established a prima facie case of discrimination on the basis of disability, and if so, whether the respondents have established that they made reasonable attempts to accommodate the applicant's disability up to the point of undue hardship. For the reasons that follow, I find that the respondents did not meet their procedural and substantive duties to accommodate the applicant with respect to the provision of a speaker system in the Council Chambers and allowing the applicant to tape record Council meetings.
EVIDENCE
6The applicant was elected as a member of the Public Utilities Commission for a term from 2000 to 2003. He testified that his hearing impairment did not interfere with his ability to attend and function at Commission meetings. At these meetings, the members sat close to each other and spoke in a way that they could be heard. Also, the acoustics in the room were satisfactory. Therefore, he did not make any request to accommodate his disability at that time.
7In 2003, the applicant was elected to the Township of Cochrane Council. These meetings were held in a different venue than the Public Utilities Commission's meetings. The venue for the Council meetings was different from the Commission's meetings in that there was more ambient noise, and the applicant often could not hear members across the room when they spoke. The applicant indicated that although he attempted to read lips and listen closely he was missing portions of the discussion throughout Council meetings due to his hearing impairment.
8According to both parties, the relationship between the applicant and other council members, as well as city administration, was adversarial and without mutual trust. The applicant was accused of breaching confidentiality, and taking comments out of context to attack city officials in a local publication called "Heads Up". The applicant admitted in his testimony that he could be described as a "muck raker" because his relationship with some other Town politicians and administrators was often publicly adversarial. The relationship between the applicant and the Town deteriorated so substantially that the Town believed it was necessary to commence litigation against the applicant. He was subsequently ordered by the Honourable Mr. Justice Riopelle on July 11, 2003 (Cochrane (Town) v. Palangio, [2003] O.J. No. 3765 (QL) (Div.Ct.)) not to attack the integrity or harass representatives or employees of the Town's Public Utilities Commission.
Speaker System as a Means of Accommodation
9The applicant testified that from the time he was elected to Town Council until the original complaint was filed with the Commission he repeatedly requested headphones or a speaker system to accommodate his disability. These requests were made on numerous occasions to Pierre Demers, and approximately six times to Mayor Martin. The applicant testified that the headphones or a speaker system were necessary for him to be able to hear, follow, and participate in the Council meetings. In response to the applicant's request, the Council Chambers were outfitted with microphones, and a loop was added that would allow feedback to headphones from the other microphones.
10The applicant found the headphones bothered his hearing aid and made a request for ear buds instead. While the applicant found that the ear buds were an improvement, he testified that he still missed a portion of the Council meetings and he often needed attendees to repeat their statements. The applicant indicated that on a number of occasions he approached Mayor Martin after Council meetings to advise that the current sound system was not accommodating his disability. He testified that he told Mayor Martin that the ear buds were okay but not good enough to follow the full Council deliberations, and he continued to request the installation of a speaker system. The Mayor in his testimony denied that these requests were made.
11The applicant testified that after he advised that the ear bud system was not effective the Town administration made no further inquiry respecting the effectiveness of the ear buds, and did not advise the applicant of any policy or procedures in place to accommodate his disability.
12The applicant testified that asking fellow Council members to repeat statements was intimidating, and occasionally embarrassing. On one occasion, for example, when he asked a fellow Council Member what was said he could see that there was some commotion across the room at the time of the request. The applicant testified that he was later advised by a fellow Councilor that the Council Member in question had called him a "dumb wop". The applicant noted that Cochrane was a small town and this slur generated much gossip with a dozen or more individuals approaching him to discuss the insult. As would be expected, the applicant felt humiliated. In his evidence, the applicant indicated that due to his hearing impairment, it is not uncommon to be ridiculed because he does not always follow the conversation. This has resulted in him also being called in the past "retard" and other derogatory comments by other people in Cochrane.
13The respondents deny that the applicant asked for improvements to the speaker and or headphone system after they were installed because the ear buds provided were inadequate. Both Pierre Demers and Mayor Martin deny that any such request was made. Pierre Demers indicated that if a request was made for a speaker system to accommodate the applicant's disability, a speaker system would have been provided. The Mayor testified that he had no discussion with the applicant respecting the speaker system or any accommodations for his disability, and particularly about the speaker system or ear buds.
14It is uncontroverted evidence that at the time of the incidents alleged in the application there were no policies or procedures in place for requesting accommodation. Also, at the time of this hearing, no speaker system was installed in the Council Chambers for the Council members or for persons in the gallery. This is the case although the Town had been aware of this application since April 2006 and although the application makes clear that the applicant seeks the installation of a speaker system as a remedy in this proceeding.
Use of a Tape Recorder
15The applicant testified that to compensate for the fact the ear buds were not fully effective his wife would record at home the Council meetings that were televised. For meetings that were not televised, the applicant would use a tape recorder so that he could later review all that was said. The applicant indicated that a taped recording of the meeting permitted him to replay the tape following the meeting. When he replayed the tape he was able to turn the volume on the tape recorder as high as he needed to, and also rewind and re-play as often as he needed to understand points he may have missed during the Council meeting. He further testified that this was his way of taking notes since he frequently could not hear all details of the conversations. The applicant testified that he always put the tape recorder on the table in front of him. This point is disputed by the respondents. The applicant also noted that the media would often use tape recorders in the meetings.
16The parties agree that on February 17, 2006, a tape recorder fell out of the applicant's jacket pocket during a Council meeting. According to the Town Council Minutes of the meeting in question, at least 22 people were crowded into the Council Chamber on the evening in question, plus any members of the public whose names were not included in the Minutes as participants or invited guests. A loud clunk was heard by other people attending. The applicant placed the tape recorder on the table in front of him and was immediately asked to remove it from the room. The meeting was stopped and the tape was taken out of the applicant's tape recorder. The applicant believes that he was humiliated in a very public way in front of at least 21 other people attending the public meeting. The applicant did not indicate at this point that it was needed as an accommodation for his disability, but did subsequently when he filed his original complaint with the Commission less than two months later.
17The respondents led evidence to show that the applicant did not openly use the tape recorder before February 17, 2006. Its use was not observed by Rheal Cousineau, a witness who sat close to the applicant at Council meetings. Mr. Cousineau admitted that he did not like the applicant's confrontational and sometimes antagonistic style, and although he sat beside the applicant he did not pay much attention to him or engage with him. The Town's Chief Administrative Officer at the time, Pierre Demers, testified that a tape recorder would be unwelcome due to privacy legislation and concerns by other Councilors that such a record of their statements made in public meetings could be taken out of context. The respondents testified that they did not know and were never advised that the applicant used the recorder as an adaptive aid for his hearing impairment. Mayor Martin testified that, given the history between the parties, the respondents automatically assumed when they saw the tape recorder on February 17, 2006, when it fell out of the applicant's jacket pocket that it would be used for the applicant's "cohorts and for his own analysis".
18The respondents led evidence that all new Councilors received an information kit at the beginning of their term. This provided information on the Town's Code of Ethics, confidentiality, and procedures at council meeting, among other things. However, the respondents admitted that council members were not advised on how to proceed should they have a request to accommodate their disability. At no point in the applicant`s tenure did the Town respondent develop any policies or procedures respecting accommodation for Councilors with disabilities, although the applicant clearly had a disability. The respondents provided evidence that due to guideline changes pursuant to the Accessibility for Ontarians with Disabilities Act, S.O. 2005, c. 11 the Town has since undertaken to develop new policies and procedures for persons with disabilities, as well as an accessibility plan.
ANALYSIS
19The Code explicitly prohibits discrimination in the workplace based on disability by stating at s. 5 the following:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
20The parties did not dispute that the Tribunal had jurisdiction to consider the applicant's allegations of discrimination pursuant to s. 5 of the Code. There is also no dispute between the parties that the applicant has a disability within the meaning of the Code.
21The applicant must prove on a balance of probabilities that the respondents discriminated against him based on his disability.
22When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists: see Wall v. Lippé Group, 2008 HRTO 50 [reported 64 C.H.R.R. D/26] and Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 2004 BCHRT 225, 51 C.H.R.R. D/68. As the Code states at s. 17(2):
17(2) No tribunal or court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
23Therefore, as a result of s. 17, a respondent cannot claim the defence of undue hardship unless it can demonstrate through objective evidence that it has undertaken measures up to the point of undue hardship to accommodate an applicant's disability.
24It is well-established in human rights law that the duty to accommodate encompasses two components: 1. procedural (that being the process whereby the accommodation was considered) and 2. substantive (the accommodation that was achieved or the reasons for lack of accommodation) (see: British Columbia (Public Service Employee Relations Comm.) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 [35 C.H.R.R. D/257] at § 62–68 ("Meiorin")).
25In Oak Bay Marina Ltd., supra, at § 84, the Tribunal summarized the relevant authorities on the scope of the procedural content of the duty to accommodate, as follows:
... The duty to accommodate is a positive obligation. An employer has a duty to obtain all the relevant information about the employer's disability, at least when it is readily available. This includes information about the employee's current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term "undue hardship" requires respondents in human rights cases to consider seriously how complainants can be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any steps could be taken does not satisfy the duty.
26It is clear on the evidence before me and based on the decision of Justice Riopelle that the relationship between the applicant and certain representatives of the Town has been adversarial. My only role is to adjudicate the applicant's human rights application and to determine whether there was discrimination based on disability contrary to the Code.
27Counsel for the respondents argued that the applicant's disability-related needs were fully accommodated with the use of the ear buds, and the tape recorder was not a tool to assist with his hearing impairment. Instead, according to the respondents, the applicant wished to use the tape recorder to secretly record meetings and use the taped conversation to breach confidentiality and provide information to attack town officials in the publication "Heads Up". The respondents also deny that the applicant made any request for accommodation in the form of the installation of a speaker system. .
Was the failure to install a speaker system contrary to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
28There is a dispute between the parties regarding whether or not the applicant requested a speaker system when the earbuds proved to be problematic. The applicant testified that he made such a request, orally, to the mayor on at least six occasions and to Pierre Demers, orally, on numerous occasions. Both Mr. Demers and Mayor Martin deny that any such request was made. Pierre Demers testified that, had he been made aware of a request for a speaker system, that request would likely have been granted. The Mayor testified that he had no discussion with the applicant respecting the speaker system or any accommodations for his disability, and particularly about the speaker system or ear buds.
29In determining the credibility of witnesses, the Tribunal has made use of the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions...
30In resolving the factual dispute over whether the applicant requested a speaker system be installed, I have considered the demeanour of the individuals before me, and the harmony of the witness' story with the preponderance of probabilities that are reasonable in the circumstances. In my view, the applicant testified in a straightforward manner. His evidence on his request for a speaker system was consistent throughout his testimony, including during cross-examination. I find that the applicant's version of events is more "in harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable" in the circumstances of this case. It is undisputed that the parties had some discussions about accommodation. This resulted in the headphones and then the ear buds. I accept the applicant's evidence that he felt the ear buds, while an improvement, were not sufficient to allow him to participate fully in Council meetings. In light of this, a request for a speaker system would be a logical extension of the discussions that did occur between the parties.
31Further, the respondents submitted into evidence photos of the Council Chamber. It is comparatively small. The Mayor would have noticed new equipment installation in front of him, he would have been engaged with Town administration on a host of issues including changes to Council Chambers, and I expect that it would have been reasonable for the Mayor to discuss with the applicant the sound system, including its use as a means of accommodating the applicant's hearing impairments.
32The applicant had not hesitated to initiate the request for accommodation. I find it very unlikely that the applicant, after requesting and obtaining the headphone system and then the ear bud system as a form of accommodation so that he could participate in his elected position, would not have advised the Town administration that the ear bud system was not good enough to accommodate his hearing impairment. Furthermore, at the time of this hearing, Town administration continued to demonstrate ambivalence to the hearing impaired by not installing a speaker system in the Council Chambers. The fact that a speaker system was not installed, despite their knowledge of this application and the applicant's claim therein of the need for a speaker system to accommodate his hearing-related disability, undermines Mr. Demers' evidence that if a speaker system had been requested one would have been installed.
33I therefore find on a balance of probabilities that it is more likely than not that on at least on [sic] one occasion the applicant requested that the respondents install a speaker system to accommodate his disability.
34Having found that the respondents were aware of the applicant's need for accommodation, I also find that the respondents failed to make meaningful inquiries into how the applicant could be accommodated when they were advised that the ear buds were insufficient. There was no evidence to indicate that the respondents followed up on the request nor was there any evidence that the installation of a speaker system would cause the respondents undue financial hardship.
Was the failure to allow the applicant to tape record Council meetings contrary to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
35The applicant alleges that he used his tape recorder for accommodation purposes. He testified that during the Town Council meetings that he tape recorded he always placed the tape recorder on the table in front of him. The tape recorder assisted the applicant to understand points he may have missed during the Council meeting due to the fact that the ear bud system was not good enough to follow the full Council deliberations.
36The respondents allege that the tape recorder was not necessary for accommodation purposes as the ear bud system was sufficient. Rather, the respondents allege that the applicant was using the tape recorder surreptitiously as a means of assisting him in publicly criticizing the work and conduct of other members of Town Council. The respondents' witnesses did not observe the applicant openly using the tape recorder in Council meetings.
37I find that the applicant did not use the tape recorder frequently during meetings that were televised. Indeed he would not need to tape record all the meetings because if they were televised his wife tape recorded them at home. After the applicant discovered that the ear bud sound system was inadequate I believe that he felt it was necessary to tape record meetings that were not televised. The applicant indicated that he always put the tape recorder on the table, but it was not always noticed by fellow Councilors. Presumably, the tape recorder would be placed on the table with books and documents used by the applicant for the Council meetings and therefore although present not always clearly visible. I therefore find that the applicant would alternate between placing the recorder below the table and on the table.
38While it may be that one of the applicant's purposes for using the tape recorder was to assist him in criticizing town officials, I accept the applicant's evidence that the tape recorder was a tool that assisted him to accommodate his hearing impairment. When that tape recorder was taken away he was significantly differentiated based on his disability because he could not adequately follow and participate in the conversations and political debate for which he was elected by the Town citizens. This recording would allow him to take notes, and use the information presented at meetings to serve his constituents.
39The applicant was in the best position to determine what means were best to accommodate his hearing impairment. He is intelligent and has lived with his disability most of his life, and, as such, is probably an expert on the most effective adaptations to his disability. The respondents cannot reasonably contend otherwise. The respondents did not provide any evidence to indicate that the ear bud system was a sufficient accommodation of the applicant's hearing-related needs. On the other hand, the applicant testified, and I accept, that the ear bud system had failed to accommodate his hearing-related needs.
40The applicant requested a speaker system and advised that the ear buds were inadequate. It is therefore reasonable to infer that the respondents were aware that without a workable speaker system or tape recorder, they were creating a handicapping environment that would put the applicant in a profoundly disadvantageous position for providing a public service as Town Councilor. The applicant demonstrated that after the tape recorder was taken, he was too disadvantaged to participate equally in Council meetings, and therefore filed his complaint with the Commission soon after where he asked for an apology.
41I do not accept the respondents' submission that use of a tape recorder by a Town Councilor with a hearing disability at a public meeting was a privacy concern when there were ethical proceedings available if the recordings were abused. Further, in light of the fact that it is uncontroverted evidence that the media used tape recording devices during the Council meetings, I do not accept the respondents' justification of its refusal to allow the applicant to tape record Council meetings on the basis that there were concerns about privacy legislation. The need to comply with privacy legislation is a matter that should be considered in the accommodation process but in this case, however, given that the media was already taping the public meetings, I am not persuaded that the legislation concern outweighed the need for reasonable accommodation of the applicant's disability-related needs.
42It appears that the confiscation of the applicant's tape recorder was at least partly driven by a perceived opportunity to render the applicant less capable without his adaptive aids and thereby minimize the applicant's ability to publicly criticize Town officials. The respondents' witnesses indicated that the Mayor and some members of Council had animus toward the applicant. They were bothered by his relationship with a periodical called "Heads Up". He was called a "muckraker", and the Mayor indicated he and other Councilors automatically assumed that the applicant would use the tape recorder to assist his cohorts. The respondents, however, had other venues to approach in the event of a breach of ethics. Further, even if the respondents' failure to accommodate the applicant's disability was partially the result of personal animosity towards the applicant, it is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 [10 C.H.R.R. D/6205].
43It is true that the applicant did not explicitly ask to use the tape recorder as a means to accommodate his disability before filing his original complaint with the Ontario Human Rights Commission. However, when the Town refused to allow the applicant to tape record Council meetings, Town officials were already aware of the applicant's disability and through his request to obtain headphones and later earbuds and a speaker system were aware that the applicant required accommodation. Once the duty to accommodate has been triggered, the Town had a procedural obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required to allow the applicant to participate fully in the Council meetings. This includes making inquiries and exploring with the applicant options that may be available to accommodate the applicant's disability up to the point of undue hardship (see Robdrup v. J. Werner Property Management Inc., 2009 HRTO 1372 [reported 68 C.H.R.R. D/22]). The Town failed to satisfy this procedural obligation. Town officials did not conduct a thorough inquiry or investigation into what the applicant needed in order to accommodate his disability. The applicant made requests for accommodation, and these were either ignored or inadequately followed up. Town officials failed to install or explore installing the speaker system, and failed to consider how tape recording during meetings could work for a person who has a hearing impairment.
44In this case, there was an inquiry at the start before the Town installed the headphone system and then when the ear buds were provided. The failure to make an appropriate inquiry occurred when the Town failed to install the proper speaker system, and when the Town failed to inquire and then allow the applicant to tape the meetings after the tape recorder fell out of the applicant's jacket pocket during the February 17, 2006, Town Council meeting. The applicant subsequently indicated the tape recorder was an accommodation request in the context of filing his human rights complaint. In Lane v. ADGA Group Consultants Inc. (2007 HRTO 34 [reported 61 C.H.R.R. D/307]) the Tribunal made it clear that failure to meet the procedural dimensions of the duty to accommodate is a form of discrimination in itself. While the respondents' evidence was that the Town is working towards complying with its requirements under the Ontarians with Disabilities Act 2001 [S.O. 2001, c. 32], the Town, as of the time of the hearing, did not fully accommodate the hearing impaired in their Council Chambers and meeting rooms.
45Accordingly, I find that the respondent Town of Cochrane was in breach of its duty to accommodate the applicant`s hearing impairment when it failed to provide a speaker system to the applicant during Council meetings, and when it refused to allow the applicant to tape record Council meetings.
Liability of Personal Respondent
46Having concluded that the corporate respondent has violated the Code by failing to accommodate the applicant's disability-related needs to the point of undue hardship, I must consider whether I should also find the personal respondent, Mayor Martin, personally liable for some or all of these same violations.
47This Tribunal has been clear in its decisions that the practice of naming personal respondents is to be discouraged: see Sigrist v. London District Catholic School Board (No. 1), 2008 HRTO 14 [CHRR Doc. 08-104]; Persaud v. Toronto District School Board (No. 4), 2008 HRTO 31 [ CHRR Doc. 08-278]. In Sigrist, supra, the Tribunal refused a request to add various personal respondents, stating as follows at § 42:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for "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". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
See also: Winter v. Arnprior (Town) (No. 1), 2009 HRTO 713 [CHRR Doc. 09-0962].
48On numerous occasions, this Tribunal has exercised its power and discretion to remove personal respondents as parties to a proceeding on the basis of the factors articulated in Persaud, supra, at § 5:
Is there is [sic] a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?
Is there is [sic] any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual of an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
49In Williams v. Children's Aid Society of Toronto (No. 4), 2011 HRTO 265 [reported 71 C.H.R.R. D/418] this Tribunal found that it had a similar discretion to exercise when deciding whether to impose separate and individual liability on a personal respondent.
50In this case, I have already found the Town of Cochrane to be liable for the very conduct and actions upon which Mayor Martin might be held personally liable. The Town agrees that it is deemed or vicariously liable for anything that Lawrence Martin did while acting as mayor. The Mayor's alleged actions were clearly within the scope of his employment or Council duties, and his actions are not central to the applicant's claims of discrimination. While it is true that the actions of Mayor Martin helped form the basis of my findings of liability as against the Town of Cochrane, in my view this alone does not constitute a sufficient compelling reason to exercise my discretion to impose personal liability on him. The Town of Cochrane is fully capable of providing the remedy I have ordered below, and I do not see how imposing joint liability personally on Mayor Martin would advance the purposes of the Code. The applicant has provided no compelling reason that Mayor Martin should be held personally liable.
51As a result, the application is dismissed as against Lawrence Martin.
REMEDY
52Section 45.2(1) of the Code provides the Tribunal with the authority to direct a party who has violated the Code 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. It also provides the Tribunal with the authority to direct "any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance" with the Code. The applicant is seeking a letter of apology, an accommodation policy review to be conducted by the Town, general damages and costs.
Compensation for Injury to Dignity, Feelings and Self-Respect
53The approach to awards for damages for the intrinsic harm of discrimination has evolved in Code jurisprudence. Prior to the significant amendments that took effect in June 2008, the Code established a limit of $10,000 on damages for "mental anguish", which required a finding of willfulness or recklessness on the part of the respondent (see s. 41(1)(b) of the Code as it read prior to June 30, 2008). Tribunal decisions, however, routinely awarded greater damages for intangible losses, awarding separate amounts for mental anguish as a result of findings of discrimination on different grounds and by different respondents. After the Divisional Court's decision in Ontario (Human Rights Comm.) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297 (QL) [39 C.H.R.R. D/111] confirmed that this was permitted under the Code, amounts were awarded for "general damages", which were considered as separate from amounts awarded for mental anguish.
54The amendments to the damages provisions in the Code remove the need for the Tribunal to divide damages awards into amounts for mental anguish and for other intangible losses. They require the Tribunal to make a general evaluation of the circumstances of the Code violation and its effects to determine the appropriate monetary compensation for injury to dignity, feelings and self-respect.
55Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. Discrimination has a psychological component. As noted by the Supreme Court of Canada in considering damages for breaches of the Canadian Charter of Rights and Freedoms in Vancouver (City) v. Ward, 2010 SCC 27 at § 27:
... Compensation focuses on the claimant's personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant's intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.
56The Divisional Court has recognized that 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, frequency and duration of the offensive treatment are among the factors to be considered in setting the amount of damages; see ADGA Group Consultants Inc., supra, at § 154. There is an intrinsic value to the rights set out in the Code and the infringement of those rights warrants an assessment of general damages. As the Divisional Court stated in Ontario (Human Rights Comm.) v. Shelter Corp., supra, at § 43:
In my view, a Board of Inquiry is entitled to award non-pecuniary intangible damages arising out of the infringement of the Code. It is an award to compensate for the intrinsic value of the infringement of the complainants' rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages.
57The Tribunal has recognized that the effect on the victim, while important, is not the only factor relevant to compensation for intangible loss. It is also appropriate to apply a degree of objectivity in evaluating the circumstances surrounding the violation of the Code; see Seguin v. Great Blue Heron Charity Casino (No. 2), 2009 HRTO 940 [reported 69 C.H.R.R. D/325]. Thus, the first criterion — effect on the particular applicant who experienced discrimination — recognizes the applicant's particular experience in response to the discrimination. While the second criterion — objective seriousness of the conduct — recognizes that injury to dignity, feelings and self-respect is generally more serious depending, objectively, upon what occurred. See also: Arunachalam v. Best Buy Canada Ltd. (No. 2), 2010 HRTO 1880 [reported 71 C.H.R.R. D/126].
58When determining an appropriate remedy, the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a "licence fee" to discriminate: see ADGA Group Consultants Inc., supra.
59I find that the applicant is entitled to monetary compensation for the injury to his dignity, feelings, and self-respect arising from the breach of his right to be free from discrimination due to his disability. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization.
60The Town demonstrated harmful behaviour when it failed to explore the installation of a speaker system to accommodate the applicant's disability despite his repeated requests, when it publicly confiscated the applicant's tape recorder without appropriate inquiries, and when it barred him from attending in camera meetings of Town Council with his tape recorder. The Town knew that the applicant required assistance in following and participating in the Council meetings due to his hearing impairment. I have found that it is reasonable to infer that the Town knew the applicant would be put at a disadvantage without his tape recorder or a proper sound system. Although he was a democratically elected member of Town Council, the applicant was prevented from full participation in Council meetings. This refusal, I have found, was based in part, at least, by the fact that the Mayor and most Council members neither trusted nor liked the applicant's criticism of them. If Town officials did not like the applicant's criticism they could have dealt with the applicant's behaviour through the Code of Ethics or through legal avenues (such as those previously pursued in Cochrane (Town) v. Palangio, supra).
61The applicant testified that he was humiliated when he discovered that he was referred to as a "dumb wop" by a colleague on Council during a public meeting when he could not hear a comment made. These feelings were exacerbated when he discovered that it had become a topic of town gossip in his small community. Objectively, the hasty decision to bar the applicant from having a recording device during an in camera meeting while allowing him no opportunity for input and discussion showed a lack of respect for the applicant and his disability. He also testified that he felt it was a public humiliation, particularly as the tape was removed from his tape recorder in the middle of the Council Chambers. This discriminatory conduct resulted on the evidence before me in consequential damage to the applicant's feelings of self-respect and self-worth. Comparable circumstances to those experienced by the applicant can be found in Dodds v. 2008573 Ontario Inc., 2007 HRTO 17 [reported 60 C.H.R.R. D/249] ($10,000 in general damages; $5,000 for mental anguish under previous Code provisions); ADGA Group Consultants v. Lane, 2008 CanLII 39605 [reported 64 C.H.R.R. D/132] (Ont. Div.Ct.) ($35,000 in general damages, $10,000 for mental anguish under previous Code provisions); Harriott v. National Money Mart Co., 2010 HRTO 353 [reported 70 C.H.R.R. D/1] ($30,000 total); and Khan v. 820302 Ontario Inc., 2010 HRTO 265 [ CHRR Doc. 10-0302] ($25,000).
62There are also Simpson-Bowlyn v. Commissionaires (Great Lakes) (No. 2), 2009 HRTO 1362 [CHRR Doc. 09-1850] and Brown v. Trebas Institute of Ontario Inc., 2008 HRTO 10 [reported 62 C.H.R.R. D/329] where the applicant alleged a failure to accommodate. This case distinguishes from both of those cases, however, because the respondent in this instance repeatedly failed to continue the process of accommodation, thereby repeatedly limiting the applicant's democratically elected role as a participant in Town Council meetings, in part, at least, because the Mayor and most Council members neither trusted nor liked the applicant's criticism of them.
63An order for compensation for injury to dignity, feelings of self-worth, and self-respect is a discretionary award. When considering the public humiliation, hurt feelings and diminished feelings of self-respect experienced by the applicant in the context of him trying to discharge his democratically elected duty, I conclude that, in the circumstances of this case, an award of $10,000 is appropriate to compensate the applicant for loss of dignity and the injury to his feelings arising from his right to be free from discrimination due to his disability.
Other Remedies
64Public interest remedies should (i) promote compliance with the Code; (ii) reflect the facts of the case and the violation of the Code that the Tribunal has found; and (iii) be remedial, not punitive: see Giguere v. Popeye Restaurant (No. 4), 2008 HRTO 2 [reported 62 C.H.R.R. D/147] at § 91. Applying these principles to the facts in this case the Tribunal finds the public interest remedy sought by the applicant is appropriate. As noted above, while the Town's evidence was that the Town is working towards complying with its requirements under the Ontarians with Disabilities Act, the Town, as of the time of the hearing, did not fully accommodate the hearing impaired in their Council Chambers and meeting rooms.
65Although requested by the applicant, I do not believe that it is appropriate or necessary to order the Town to provide a letter of apology to the applicant. The jurisprudence of the Tribunal has declined to order apologies on the basis that such orders are viewed as inappropriate or an ineffective remedy, and they raise potential freedom of expression concerns; see for example Turnbull v. Famous Players Inc. (No. 1), 2001 CanLII 26228 [reported 40 C.H.R.R. D/333] (Ont. Bd.Inq.); Vasu v. Toronto Community Housing Corp. (No. 2), 2010 HRTO 344 [ CHRR Doc. 10-0403]; and Abdallah v. Thames Valley District School Board, 2008 HRTO 230 [reported 65 C.H.R.R. D/91].
66Finally, with respect to the applicant's request for costs, I decline to award costs as the Tribunal has no jurisdiction to do so. Pursuant to s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended, a Tribunal may only award costs if it has made rules. The Tribunal has not made rules regarding the awarding of costs and therefore, the Tribunal has held in the past that it has no authority to award costs: Dunn v United Transportation Union, Local 104, 2008 HRTO 405 [CHRR Doc. 08-1065]. See also Seguin v. Great Blue Heron Charity Casino (No. 2), supra; Tulul v. King Travel Can Ltd. (No. 3), 2011 HRTO 438 [reported 72 C.H.R.R. D/131]; Lopetegui v. 680247 Ontario Ltd., 2009 HRTO 1248 [ CHRR Doc. 09-1705]; Farris v. Staubach Ontario Inc., 2011 HRTO 979 [reported 72 C.H.R.R. D/327]; Clennon v. Toronto East General Hospital (No. 3), 2010 HRTO 506 [reported 70 C.H.R.R. D/58].
ORDER
67The respondent, the Corporation of the Town of Cochrane, is ordered to pay to the applicant:
I. $10,000 as monetary compensation for the loss arising out of the infringement of the Code;
II. review its policies and complaint procedures related to discrimination based on disability and its duty to accommodate, and ensure that they are in full compliance with human rights principles and Code provisions; and
III. pre-judgment interest (calculated from the date of the complaint to the Commission) and post-judgment interest (calculated from 30 days from the date of this decision) in accordance with ss. 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.