HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Chan Thai
Applicant
-and-
Hing Loong Investments Ltd. and China City Supermarket
Respondents
Decision
Adjudicator: Genevieve Debane
Indexed as: Thai v. Hing Loong Investments Ltd.
WRITTEN SUBMISSIONS
Chan Thai, Applicant ) Bay Ryley, Counsel
1The applicant filed an Application on December 9, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in services on the basis of disability. The applicant alleges that he attended at China City Supermarket and, amongst other things, was denied entry because he uses a motorized scooter.
2The applicant initially only named Hing Loong Investments Ltd. (“Hing Loong”) as a respondent. Hing Loong did not file a Response.
3On April 15, 2010, the applicant filed a Request for an Order During Proceedings seeking to add another party, China City Supermarket, as a respondent. China City Supermarket has never filed a response. The Tribunal issued an Interim Decision dated June 2, 2010, 2010 HRTO 1256 (the “June Interim Decision”), adding China City Supermarket as a respondent.
4On June 4, 2010, the Tribunal received a signed letter on China City Supermarket letterhead which stated “We think we don’t have any relationship with this matter”. China City Supermarket did not file a Response to the Application.
5On September 8, 2010 the Tribunal issued an Interim Decision, 2010 HRTO 1838 (the “September 2010 Interim Decision”), which found at paragraph 15:
The consequences of the respondents’ failure to file a Response and comply with the Tribunal’s rules and directions is that the Tribunal deems them to have accepted all the allegations in the Application and to have waived all rights with respect to further notice or participation in this proceeding.
6In the September 2010 Interim Decision, the Tribunal directed the applicant to address a number of issues with respect to liability of the respondents and the appropriate remedy. The Tribunal states at paragraph 19:
Based on my review, the Application raises the following issue with respect to liability:
(a) Did the respondents discriminate against the applicant when China City Supermarket advised the applicant that persons with assistive mobility devices were not welcome in the store and blocked the applicant’s entry into the store?
(b) Are both respondents liable or is one respondent liable for any Code violation and if one, which respondent?
7The Tribunal directed the applicant to file any further written submissions and/or documents that he wished the Tribunal to consider in deciding the Application, and to indicate whether he wished to attend a hearing.
8The applicant waived his right to an oral hearing and the Tribunal received a document entitled “Affidavit of Chan Thai Sworn September 29, 2010” as well as legal submissions. A signed copy of the same document was sent on November 2, 2010. Although the document was not commissioned, the Tribunal by Case Assessment Direction issued on November 5, 2010 (the “November 2010 CAD”), accepted the document as a signed statement of the facts. The Tribunal stated at paragraph 2 and 3 of the November 2010 CAD:
The Tribunal directs the applicant to provide further evidence and/or submissions on the following 3 points:
Para. 11 of his statement and particularly his assertion that there are not many places that he can go to buy groceries beyond the store that is located on Spadina Avenue in Toronto;
If liability is found, which respondent is liable for the alleged Code violation, as set out in para. 19(b) of the Interim Decision dated September 8, 2010, and beyond the reference to section 46.3 in the legal submissions filed on behalf of the applicant; and,
Whether the applicant is still seeking as remedies that the respondent move boxes out of the store’s doorway to make it more accessible and install a small ramp to allow persons using scooters to enter the store. This remedy was requested in the Application, but not addressed in the legal submissions. If the applicant is seeking these remedies, then the applicant should also reference caselaw in support of these requests.
The Tribunal directs the applicant to file this further information within five days of the date of this Case Assessment Direction.
9The Tribunal did not receive any further submissions from the applicant.
The Applicant’s Evidence
10The following statements are taken directly from the applicant’s signed statement. The applicant states that he has arthritis in both hips and shoulders, that he suffers from asthma and that he had polio as a child. He is required because of disability-related needs to use a motorized scooter.
11He has had difficulty getting into a store on 247 Spadina Avenue in Toronto, for a number of years because there is a small step at the entrance which is two inches high. Recently, the applicant states that the ownership of the store has changed and the store is now called China City Supermarket (the “Supermarket” or “store”)).
12The applicant states that he spoke to an employee of the Supermarket and asked him to fix the step so that people with disabilities could enter the store. The employee said that he would discuss the issue with the owner.
13One week later, on June 10, 2009, the applicant states that the owner blocked his entrance to the store and told the applicant that he could not enter the store with his scooter and that he was not welcome. The applicant called the police who refused to assist him.
14The applicant states that he spoke to an individual in a wheelchair who claimed that he was denied entry into the store later in the day.
15The applicant never returned to the store and states that he felt humiliated by his treatment and that there are not many stores in the area were he can buy his groceries.
16The signed statement does not mention the respondent, Hing Loong, its involvement in this matter or the reasons why it should be found liable under the Code.
Was there a violation of the Code
17In his written submissions the applicant states “the respondents infringed Mr. Thai’s right to be free from discrimination in services on the basis of disability contrary to section 1”. The applicant asserts that “Mr. Thai’s rights were directly infringed because the owner of the business denied Mr. Thai entry to the store because he is in a motorized scooter.”
18Based on the unchallenged evidence of the applicant, the allegations set out in the application and his signed statement, the applicant has established a breach of the Code by China City Supermarket. The applicant has established that he was denied services at the store because he required the use of a scooter for disability-related reasons. Though it is unclear if in fact the individual who denied him entry was the owner, it is clear that this individual was at least an employee of the store and pursuant to section 46.3(1) of the Code the store is liable for his conduct.
19However, the applicant has not provided a basis for a finding a violation of the Code by the respondent Hing Loong. The applicant states that he named Hing Loong as a respondent because it is the owner of the building in which the supermarket is located. In the applicant’s Request for an Order seeking to add China City Supermarket as a respondent, he states that there is a possibility that that Hing Loong and the Supermarket are owned by the same individual. This is not a sufficient basis for finding Hing Loong responsible for the conduct giving rise to the Application. In the absence of any evidence about the relationship between the two businesses, there is no support for a finding that the actions of China City Supermarket in refusing service to the applicant on June 10, 2009, should lead to liability on the part of Hing Loong. Despite being invited to do so, the applicant has not filed any submissions addressing the question of which respondent is responsible for the conduct alleged and has not sought a hearing to bring forward evidence on this issue. Accordingly, the Tribunal dismisses the Application against Hing Loong Investment Ltd.
Remedy
20The Code provides the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 45.2 of the Code states:
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.
21The applicant is requesting that the Tribunal award him $10,000 in general damages, and relies on a number of Tribunal decisions including Sanford v. Koop, 2005 HRTO 53, Broodhram v. 2009158 Ontario Ltd., 2005 HRTO 54, and Metsala v. Falconbridge Ltd., 2001 CanLII 26213 (ON HRT).
22In decisions finding discrimination in the provision of services on the ground of disability, the Tribunal has awarded monetary compensation ranging from $300.00 to $12,500.00: See for example M.O. v. Ottawa Catholic District School Board, 2010 HRTO 1754; B.M. v. Cambridge (City), 2010 HRTO 1104; Wozenilek v. 7-Eleven Canada, 2010 HRTO 407; Schussler v. 1709043 Ontario, 2009 HRTO 2194, 2009 HRTO2194; Patterson v. Gowan Property Management, 2009 HRTO 2025; and Donnelly v. Spinz Coin Laundries, 2009 HRTO 754 (“Donnelly”).
23Having reviewed the circumstances of this case, considering the case law, including the principles for determining damage awards under the Code as outlined in this Tribunal’s decision in Arunachalam v. Best Buy Canada 2010 HRTO 1880, I find that it is appropriate to award to the applicant the amount of $2,500 as monetary compensation for the infringement of the Code and injury the his dignity, feelings and self-respect. In coming to this determination I do not find comparable the decisions cited by the applicant which involved prolonged and repeated acts of discrimination by the respondents.
24Though the applicant sought to distinguish the Tribunal’s award in the case of Donnelly on the basis that the applicant’s confrontational conduct in that case reduced the award to $2,500, I note that in that case the applicant was able to establish that the denial of service severely restricted her ability to take care of her own needs because no other laundry facility was close to her home. In this case the applicant has not established the same level of dependence on the Supermarket, despite the fact that the Tribunal requested further submissions on the issue.
Public Interest Remedies
25The applicant asked in his written submissions to the Tribunal that the respondent be compelled to complete the Human Rights 101 eLearning Module and to obtain and read a copy of the Commission’s “Policy and Guidelines on the Duty to Accommodate”. Given the Supermarket’s actions which demonstrate at the very least an ignorance of the rights of disabled persons under the Code, Tribunal finds that it is appropriate to award these public interest remedies.
26Though the Tribunal has the power to do so, no other public interest remedies will be awarded. The applicant did not respond to the Tribunal’s direction in the November 2010 CAD to advise whether he was still seeking the other public interest remedies sought in his Application, and to provide supporting case law. In these circumstances the Tribunal declines to make an award for any other public interest remedies.
Order
27The following Order is made:
(a) The Application is dismissed as against Hing Loong Investment Ltd.;
(b) Within 30 days of this Decision, China City Supermarket will pay $2,500.00 to the applicant as compensation for the infringement of the Code and injury to his dignity, feelings and self-respect;
(c) China City Supermarket shall pay to the applicant pre-judgment interest running from June 10, 2009, the date the applicant was denied services, on the sum at paragraph a) above, calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;
(d) China City Supermarket shall pay the applicant post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act from the date that is 30 days after the date of this Decision; and
(e) Within 90 days from the date of this Decision China City Supermarket shall confirm to the applicant that all of its officers, directors and managers have
(i) completed the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission which is available online at: http://www.ohrc.on.ca/hr101/; and
(ii) obtained and read a copy of the Ontario Human Rights Commission’s “Policy and Guideline on the Duty to Accommodate”.
Dated at Toronto, this 9^th^ day of December, 2011.
“Signed by”
Genevieve Debane
Vice-chair