Austin v. Clayton Lakeside-Beaton Inc., 2011 HRTO 31

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Austin

Applicant

-and-

Clayton Lakeside-Beaton Inc. and Mazen Matar

Respondents

DECISION

Adjudicator: Mark Handelman

Date: January 5, 2011

Citation: 2011 HRTO 31

Indexed as: Austin v. Clayton Lakeside-Beaton

APPEARANCES

Leslie Austin, Applicant ) Self-represented

Clayton Lakeside-Beaton Inc. and ) Ronald W. Price, Counsel

Mazen Matar, Respondents )

BACKGROUND

1The applicant filed a complaint dated July 14, 2005 (the “Complaint”) with the Ontario Human Rights Commission (the “Commission”) alleging a breach of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), by the respondents. The applicant abandoned the Complaint and filed an Application (the “Application”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of the Code.

2In his complaint, the applicant alleges discrimination by the respondents against him for failure to accommodate his disability. When the applicant purchased the trailer and rented the site for it, he knew he suffered a degenerative disease but it progressed quicker than he anticipated, limiting his mobility. The applicant alleges that some of the campground amenities were not accessible to him when he began to require a mobility-assisting device in 2003.

DECISION

3I find that the respondents breached the Code by failing to make the public facilities in their campground accessible to persons with disabilities that limited their mobility. I make the Order set out below.

EVIDENCE

4The corporate respondent owned a campground about a 50-minute drive west of Kanata, Ontario, purchased in 2002 and first operated by the corporate respondent over the summer of 2003. The individual respondent was one of the owners and guiding minds of the corporate respondent, and was on site most weekends the campground was open, which was annually from the Canada Day weekend to Thanksgiving. In his evidence the individual respondent testified that he ran the day-to-day operations of the campground.

5The campground comprised about 22 acres. It had 90 trailer sites, three rented cottages and three tent sites. It had a small marina, a store and a community area for group events organized by some of the regular campers. The community area included a covered but otherwise open pavilion and washrooms. Some of the “regulars” planned events such as barbecues for the benefit of all of the park users.

6The applicant and his wife purchased a residential trailer from the previous owner of the campground in 2002 and rented a site for it from then until they sold the trailer in 2008. They lived in London, Ontario at the time but planned to use their trailer summers and eventually move to the park year-round, as the previous owner of the park (from whom they purchased the trailer) told him there were plans to make the park accessible throughout the winter.

7The applicant’s rent for the trailer site in 2003 was $1500. It increased about 5% each year. His annual taxes for the trailer were about $400.

8The reason the applicant and his wife chose this park in particular was its proximity to Ottawa, where their daughter lived. They wanted to be able to spend more time with her and her children and envisaged summers by the water watching their grandchildren grow up.

9The applicant lives with a degenerative disease that limits his mobility. Over the summer of 2003, he was able to access the washrooms near the pavilion and also the general store. He had the ability to get off his scooter and walk a few steps with the assistance of a cane. However, by the following summer, he had lost that ability.

10Beginning in the spring of 2003, the applicant asked the respondents to make the campground’s community facilities accessible to him. He did this by email and in conversations with the individual respondent.

11The applicant’s complaints were that the campground store was inaccessible to him because of stairs; that the public telephone was inaccessible to him because it was located at the top of the stairs to the store; that he could not open the door to the washroom by the community area and that the washroom’s internal facilities were not accessible to him; and that he could not access the garbage receptacles around the campground because the doors were too heavy and high to be opened from his scooter.

12At the hearing, the respondents’ answer to these complaints was that they tried to accommodate the applicant but that some of the accommodations were beyond their control, another was impossible, they accommodated him to the extent possible, and they thought he was happy.

13The individual respondent testified that he thought the applicant was happy with the accommodations made because he did not complain about the deficiencies on an ongoing basis. While not denying that he was aware of the applicant’s complaints during the summer of 2003, the individual respondent testified that, when he saw the applicant at the campground over the years and while they had other dealings as a result of a landlord and tenant matter and the litigation referred to above, the applicant never raised the issue of accommodating his physical needs.

14The campground store overlooked the marina. It comprised a concrete foundation and a clapboard building. To get to the door, one had to climb about a dozen steps. By the summer of 2004, it was inaccessible to the applicant. The individual respondent testified that various contractors told him it was impossible to build a ramp to it and in any event they were too busy to attend to such a job over summers. Some contractors gave estimates and offered to return at the end of the season, but then did not honour their promises.

15The store had limited offerings but was an integral part of the facility. Residents went there for ice, newspapers, ice cream cones and other amenities—the campground is a considerable distance from any other stores. The respondents’ compromise was to install a bell that the applicant could ring from the bottom of the stairs. The clerk was then supposed to come out, find out what the applicant wanted and bring it to him. The applicant complained that he frequently had to wait for the store clerk to serve him. He found the bell ineffective and disrespectful and said he could not take his young grandchildren to the store for ice cream. He cited one incident during which he went to purchase a newspaper but while he was waiting for the clerk to assist him another camper purchased the last newspaper.

16In other words, the applicant contended that the bell was not a reasonable accommodation of his disability.

17After the summer season of 2009, one of the other co-owners of the corporate respondent was having some work done on his store in Ottawa and mentioned to the contractor that they needed a ramp installed at this campground. That contractor did the work in the autumn of 2009 at a cost to the corporate respondent of about $1600. Exhibit 1 at the Hearing was a photograph of the ramp. As of the date of the hearing, the respondents had not yet received a building permit for the ramp, or clearance to use it by the building inspector.

18The public telephone was at the top of the stairs to the store. Bell Canada owned it. The individual respondent testified that he and others contacted Bell a number of times to request the telephone be moved, although there is no evidence as to when this occurred. The respondent said that moving the telephone was not a priority to Bell and in any event the applicant had his own telephone in his trailer. Some time in 2008, Bell Canada finally moved this pay telephone to a location that was “handicap accessible.”

19The garbage bins in the campground were, of necessity, bear-proof. They were metal bins about four feet wide and about three feet front to back. They were about three feet high at the front and four feet high at the back. The height gradient from front to back meant that the lid was angled. The lid covered the whole bin. Its two panels were hinged on the sides of the top of the bin, to open from the middle, and each panel had one large handle. Because of the cant of the lid panels, they had to be pulled up and forward to open the bin. To be bear-proof, they had to be heavy.

20The applicant could not open the garbage bins. He wanted a ramp built up to the garbage bins so he could open them. The individual respondent testified that this would be dangerous for everyone because, when the garbage truck lifted the bins to empty them, using a forklift-type mechanism attached to the truck, the bins would not be set back in the exact same place and there could be a gap between the ramp and the bin.

21The respondents tried to accommodate the applicant’s need to get rid of garbage by offering to collect it from his trailer but this was not satisfactory to the applicant.

22Ultimately, the respondents placed large plastic barrels beside the bins where all campers could dump their garbage. The respondents then ensured that an employee emptied the contents into the bins each night and secured the lids. This was also not satisfactory to the applicant, who contended at the hearing that he should have equal access to the bins and a ramp was the only way to accommodate him.

23The community washrooms were simply inaccessible to the applicant from the summer of 2003 onwards, when leaving his scooter was too difficult to manage without either assistance or suitably placed grab bars. He could not open the door to the men’s room and even if he could, he could not access the facilities. To the applicant, there were two prime consequences. First, he could not fully partake of the ongoing social events his neighbours organized. Second, he could not spend as much time in the public areas of the campground with his grandchildren, not only because of his own needs but also because he could not supervise their use of the facilities. If one of his two grandsons needed to use the washroom, the applicant had to take them away from the community activity and back to his own trailer.

24Community social events included picnics, barbecues, dances, bingo, card tournaments, horseshoes and darts.

25The applicant’s grandsons were quite young. They were born in 2002 and 2004. They spent much of each summer with the applicant and his wife and their mother visited some weekends during the camping season.

26As with the ramp to the store, the individual respondent testified that they could not find contractors to retrofit the washroom facility. As of the date of the Hearing, nothing had been done, nor was anything planned.

27The applicant had a liveable trailer in the campground, which had washroom facilities. The absence of accessible public facilities limited but did not preclude his use of the park. He also had his own telephone in the trailer and there was no evidence to suggest he ever needed or wanted to use the public telephone, or that he acquired his own telephone because he could not access the public telephone.

28The applicant sold his trailer in 2008 and did not use the park after that. While he lost money in the sale, his claim for compensation in that regard is the subject of his Court action and not relevant to this Application other than the extent to which it showed his frustration with the progress made to make the campground’s facilities available to him. It is common ground that the failure of the corporate respondent to winterize the campground was the primary reason for the applicant selling his trailer. However, to the extent that any failure to accommodate the applicant was a factor in the decision to sell his trailer, that has been raised and can properly be dealt with in the civil action.

29In his evidence, the applicant summed up his complaint with the observation, “Camping is a social activity and I was precluded from full participation.”

LAW AND ANALYSIS

Liability

30Section 1 of the Code sets out the applicant’s rights regarding services and facilities in Ontario:

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…

31In his submissions, the applicant cited Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, in particular paragraph 121, where Justice Abella of the Supreme Court wrote,

The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposes undue hardship on the service provider: Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (S.C.C.), [1994] 2 S.C.R. 525 (“Chambly”), at p. 546

32The applicant’s complaints related to the respondents’ failure to make the facilities of the campground accessible to him. He raised the issue with the individual respondent in 2003 and made his complaint to the Commission in 2005. While there was some issue as to when the respondents had notice of this Application, in my view nothing turns on that. Simply put, some of the important park amenities were not accessible to the applicant and to others with limited mobility and the responsibility was upon the respondents to remedy this to the point of undue hardship. I infer from the evidence the individual respondent gave that he and the other guiding minds of the corporate respondent did not pay much attention to the applicant’s accessibility needs because he didn’t mention them on an ongoing basis. In my view, the applicant had no obligation to harp. I think the concept of reasonable accommodation also recognizes the right of the person in need of accommodation not to have to demean himself by repeating his requests. The individual respondent and others responsible for the campground were aware of the requests from 2003 and saw him on his scooter with some frequency every summer. He had raised the issues with them.

33Regarding relocation of the Bell Canada pay telephone, in my view it was the respondents’ responsibility to make these arrangements with Bell, or at the very least to express their concerns and needs in writing to Bell. The campground arranged to have a pay telephone available on the property in the proximity of the general store. I find that they intended that this be a service available to the public and as such they had some responsibility for ensuring it was a service accessible to all members of the public, including the applicant. The respondents alleged that it was not a priority for Bell, but provided no evidence to support this assertion and only vague assertions of their own efforts to have the public telephone moved. On the evidence before me I conclude that the respondents did not consider making the public telephone universally accessible a priority, did not make reasonable or diligent efforts to have it moved in a timely manner and therefore are liable for an unreasonable delay in having it moved. I note that Bell Canada had no notice of this proceeding, and if it had, I would have no jurisdiction with respect to that entity as it is a federally-regulated undertaking. On the other hand, since the applicant had his own telephone, his inability to access the pay telephone had little impact on his ability to enjoy the campground beyond the irritant of seeing it regularly.

34It was not in issue that the individual respondent met with the applicant at his trailer in the campground in attempts to resolve the applicant’s complaints about access to the garbage bins. The respondents first arranged to collect his garbage from his trailer then proposed the blue plastic receptacles.

35Storing garbage in bear-proof containers was necessary. The ramp the applicant suggested was fraught with other risks and would still leave the applicant struggling with the heavy metal lid. In my view, provision of plastic garbage cans next to the metal containers was a reasonable accommodation in the circumstances, although it took the respondents a few years to arrange that. There was no legitimate reason for this delay and the applicant is entitled to some compensation for it.

36The washroom facilities and the inaccessibility of the store are entirely different matters. Both were integral aspects of the campground experience and the applicant had every right to have access to them unless accommodating that resulted in “undue hardship” to the respondents.

37The essence of the individual respondent’s evidence regarding both store and washroom facilities was, “Well, we made some inquiries, we tried to get the work done, but we couldn’t.” The washroom and the store therefore went unchanged from 2003 to autumn 2009, when after the campground season, the corporate respondent found a contractor in Ottawa to build the ramp to the store for $1600. I reject the notion that building the ramp was impossible or that doing so imposed undue hardship upon the respondents.

38I agree with the applicant that installing a bell he could ring, so that the store employee could come out to take his order then bring the merchandise out was not a reasonable accommodation. It might have been reasonable as a stopgap, but not for six years. The respondents have not established that building the ramp caused them undue hardship and the applicant is entitled to compensation for this barrier to his access.

39As of the hearing, the washroom remained inaccessible to persons with limited mobility. The respondents have not established either that it is impossible to make the washrooms accessible or that doing so would result in undue hardship to them. The applicant is entitled to compensation for this barrier to his access.

Compensation

40For reasons set out above, compensation for the applicant’s claims regarding the garbage facilities and the inaccessible telephone should be in the nominal range, more so regarding the telephone than the garbage facilities. However, the applicant is entitled to compensation arising from failure to make the store and the washroom accessible.

41The applicant did not suffer or incur any “special” damages in the nature of lost income or money out of pocket, amounts that are readily calculable. Rather, his damages relate to injuries to his feelings and dignity, for all of which he is entitled to compensation.

42In calculating damages, I have intentionally ignored the fact that the applicant sold his trailer in 2008. The sale of the trailer was primarily due to the fact that the campground was never winterized as promised by the corporate respondent’s predecessor owner and therefore not suitable for the applicant and his wife to use as a year-round residence. That complaint is the subject of the applicant’s Superior Court Claim and is a different issue than the matters in this Application. The extent to which limited accessibility to public washroom and telephone facilities and the inaccessible garbage facilities was relevant to the decision to sell is a matter better canvassed in the Superior Court litigation than here.

43While the applicant could not access the store or the community washrooms, that did not preclude but rather constrained his use and enjoyment of the facilities. By the applicant’s account, there were about a half-dozen organized events at the community pavilion each camping season and ongoing impromptu happenings.

44The Tribunal’s authority to compensate an applicant whose rights have been breached and to make an order for future compliance is set out in s. 45.2 of the Code:

45.2 (1) 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:

1. 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.

2. 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.

3. 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.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

45.3 (1) If, on an application under section 35, the Tribunal determines that any one or more of the parties to the application have infringed a right under Part I, the Tribunal may make 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.

(2) For greater certainty, an order under subsection (1) may direct a person to do anything with respect to future practices.

45As a result of the inaccessibility of the campground’s store and public washroom facilities, the applicant suffered injury to his dignity, feelings and self-respect. His damages accrued each summer between 2003 and 2008, inclusive.

46The applicant’s occupancy cost of his trailer, being rent and taxes, is relevant to calculating his loss of enjoyment. His rent was $1500 for the 2003 season, increasing by 5% annually. Taxes were about $400 per year. For loss of enjoyment of the campground, I think an abatement of the applicant’s occupancy costs in the range of 25% per annum for each of the six years is fair. Given the annual rent increases, his average occupancy cost over the period in question was about $2150 per year. I therefore fix damages in this category in the amount of $3225.

47In assessing the applicant’s injury to his dignity, feelings and self-respect, I am mindful that the respondents were not intentionally breaching the applicant’s rights but also that they did little to accommodate him and that the applicant’s complaints were ongoing. An award for damages is intended to compensate the applicant, not punish the respondents.

48In all of the circumstances and having regard to the fairly extensive case law already established by the Tribunal, I fix the applicant’s monetary compensation for injury to his dignity, feelings and self-respect at $12,000.

Interest

49The total award of monetary compensation is $15,225. However, damages accrued yearly from spring 2003 to autumn 2008. The fair way in this circumstance to calculate interest is to award it on that sum from the midway point of the accrual to the date of this Decision, in other words from July 2005 to January 2011. I think the appropriate rate of interest is 5%. I fix pre-judgment interest at $4200.

50The applicant is also entitled to interest on any amounts not paid to him by the respondents within 10 days of the date of this Decision, also at the rate of 5% per annum, not compounded.

Future Compliance Order

51Although the applicant no longer uses the campground, the washroom facilities remain inaccessible to persons requiring mobility assistance. There was no evidence that imposing such an order would cause the respondents any undue hardship and there is no reason not to expect a campground in Ontario to have accessible washrooms. It is up to the applicants to decide whether they wish to retrofit the existing doors and washroom facilities or build a separate, single but accessible washroom.

52While I heard and accepted evidence that a ramp been installed to make the general store accessible, that ramp must meet applicable building code requirements and all steps to ensure it meets the applicable standards should also be completed before the 2011 season opening of the campground.

ORDER

53The Tribunal therefore orders as follows:

(a) The respondents are jointly and severally liable to pay the applicant $15,225 in monetary compensation;

(b) The respondents are jointly and severally liable to pay the applicant pre-judgment interest fixed at $4200.

(c) The respondents are jointly and severally liable to pay the applicant post-judgment interest on any sums not paid within 10 days of the date of this Decision at the rate of 5% per annum.

(d) The corporate respondent is directed to provide accessible washrooms in accordance with all relevant Building Codes as part of or adjacent to the existing community washroom facilities and to ensure that the ramp to the general store has been completed in a manner that meets all relevant Building Code requirements.