HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Saxon

Applicant

-and-

The Corporation of the Town of Amherstburg

Respondent

DECISION

Adjudicator: Mark Hart

Date: May 18, 2011

Citation: 2011 HRTO 960

Indexed as : Saxon v. Amherstburg (Town)

APPEARANCES BY

Linda Saxon, Applicant ) Self-represented

The Corporation of the Town of Amherstburg, ) Ed Posliff, Counsel

Respondent )

[1] This 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 June 29, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on October 2, 2006.

[2] The applicant alleges that she experienced discrimination in respect of the provision of services because of her disability contrary to ss. 1 and 9 of the Code, arising out of her efforts to raise disability and accessibility issues with Amherstburg Town Council.

[3] The hearing in this matter was held on February 1, 2011 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the applicant, which was followed by cross-examination by respondent counsel and an opportunity for the applicant to provide any further evidence arising out of cross-examination. I then heard oral submissions from the parties as to whether the applicant’s allegations were within the scope of this Tribunal’s jurisdiction relating to the area of “services”, whether the applicant had made out a prima facie case of discrimination because of disability, and whether the named personal respondents should continue as parties to this proceeding.

[4] The Application in this matter was filed against Amherstburg Town Council as well as The Corporation of the Town of Amherstburg. I accept the submissions of respondent counsel that there is no such legal entity as “Amherstburg Town Council” and as a result, the Council is not referenced as a party respondent to this proceeding and the title of proceedings has been amended accordingly.

[5] The Application also identified three personal respondents, all of whom were Town Councillors at the material time. Section 448 of the Municipal Act, 2001, S.O. 2001, c. 25 provides as follows:

(1) No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.

(2) Subsection (1) does not relieve a municipality of liability to which it would otherwise be subject in respect of a tort committed by a member of council or an officer, employee or agent of the municipality or a person acting under the instructions of the officer, employee or agent.

[6] As I have stated in past decisions, a provision of this nature is effective to insulate an individual respondent from personal liability under the Code in the absence of some foundation in the allegations for an assertion that the individual was not acting in good faith. In my view, the mere allegation that an individual has violated the Code is not, in and of itself, sufficient to support an allegation that the person failed to act in good faith: see Boone v. Catholic Children’s Aid Society of Toronto, [2009 HRTO 2098](https://www.minicounsel.ca/hrto/2009/2098) at paras. [41 to 50](https://www.minicounsel.ca/hrto/2009/2098) and Williams v. Children’s Aid Society of Toronto, [2011 HRTO 265](https://www.minicounsel.ca/hrto/2011/265) at paras. [201 to 203](https://www.minicounsel.ca/hrto/2011/265).

[7] In my view, there is no sufficient basis provided by the applicant in her complaint or in her evidence to provide a foundation for an allegation that any of the named Councillors were not acting in good faith in relation to the allegations made against them personally. As a result, I hereby remove them as personal respondents to this proceeding and the title of proceeding has been amended accordingly.

[8] The applicant is an advocate on disability and accessibility issues who resides in the Town of Amherstburg. She describes herself as a person who has a mobility impairment. She walks with a cane but does not require a wheelchair.

[9] Over the years, the applicant has advocated with the Town on a variety of disability and accessibility issues, including that public facilities be made accessible, that a bylaw for accessible parking be promulgated, and that accessibility issues be appropriately addressed in the Town’s Official Plan.

[10] It is clear from the applicant’s complaint, and the applicant was equally clear about this at the hearing, that her allegations do not relate to, or arise out of, the outcome or result of her advocacy efforts. For example, her allegations are not about the Town’s failure to adopt an accessible parking by-law or some substantive deficiency in the Official Plan or (with one exception that is discussed below) about any lack of accessibility in relation to a specific facility operated by the Town.

[11] Rather, the applicant’s complaint is about her ability to equally access her municipal government and equally participate in the municipal decision-making process. In particular, she alleges that Town Council or specific Councillors failed to respond to certain correspondence that she sent to them, that correspondence sent by her to Town Council was not put on Council’s agenda, that certain statements made by Town staff in a letter sent to her and certain statements made by Councillors in meetings attended by her were offensive, and that she was not recognized to speak at a public meeting relating to the Town’s Official Plan. The underlying theme of the allegations raised in the applicant’s complaint is that she, as a person with a disability, was raising disability and accessibility issues with the Town and she feels that the issues and concerns she was raising were being ignored.

[12] The questions for me are the extent to which any of these allegations fall within the scope of “services” within the meaning of s. 1 of the Code or establish a prima facie case of discrimination in respect of services because of disability.

[13] The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s.1, every person has the right to equal treatment “with respect to services, good and facilities” without discrimination because of, among other things, disability.

[14] There can be no doubt that a municipality offers many services to the public, which are amenable to this Tribunal’s jurisdiction under the Code, such as policing services, public transit, recreational services, public libraries, and a variety of licences and benefits. It also is clear that the outcome or result of a municipality’s legislative process, such as a bylaw, falls under the jurisdiction of the Code. In addition, caselaw has held that the exercise of a discretion by a municipality or Mayor not to proclaim Gay Pride Day in that municipality falls within this Tribunal’s jurisdiction: Hudler v. London (City) (1997), [1997 CanLII 24809 (ON HRT)](https://www.minicounsel.ca/hrto/1997/24809), 31 C.H.R.R. D/500 (Ont. Bd.Inq.).

[15] However, as stated above, the allegations raised in this proceeding expressly are not about the outcome or result of the Town’s legislative process. Rather, they largely are about the ability of the applicant to participate in the Town’s legislative process. One question that arises in this context is whether the ability to participate in a municipal decision-making or legislative process falls within this Tribunal’s jurisdiction within the scope of “services”, as set out in s.1 of the Code, and, if so, to what extent.

[16] In my view, in order to determine this individual case, it is not necessary for me to rule definitively on the extent to which a person’s ability to participate in a municipal decision-making or legislative process falls within this Tribunal’s jurisdiction. I certainly can imagine scenarios where, for example, the ability to make a delegation to a municipal council was barred to persons identified by a particular ground resulting in a discrimination application that may fall within our jurisdiction. But that is not the case here. Not only was the applicant not barred from making delegations to Council, the evidence is that she frequently exercised her right to do so.

[17] The applicant’s complaint raises several allegations either about the failure of the Town to respond to her correspondence or about her receipt of responses from individuals other than Town Council. For example, in paragraph 1 of her complaint, the applicant states that Council did not respond to her June 15. 2005 submission or her January 2005 letter regarding the adoption of a Model Parking By-law. In paragraph 2 of her complaint, the applicant states that her November 9, 2005 letter to Council was not on the agenda for the November 14, 2005 Council meeting (although she did receive a response to her letter from the Town’s Chief Administrative Officer, discussed below). In paragraph 9 of her complaint, the applicant states that Council did not respond to her Official Plan submission and she instead received a response from the Planning Coordinator, and that her submissions were sent to the Town Planner who met with Council. In paragraph 10, the applicant alleges that Councillor Bailey did not respond to her July 10, 2006 letter following up on some items discussed at a meeting the previous February.

[18] In my view, whether a municipality’s failure to respond to a constituent’s correspondence or failure to provide a response from any specific person falls within the scope of “services” within the meaning of s. 1 of the Code, upon which I express no conclusive opinion in this Decision, the facts as alleged by the applicant, even if accepted, do not support a prima facie case of discrimination because of disability. In two instances, the applicant did in fact receive responses to her correspondence. In my view, the fact that these responses came from the Town’s Chief Administrative Officer in one instance and its Planning Coordinator in another instance, rather than from Town Council itself, does not support a claim of discrimination.

[19] In relation to the applicant’s allegations about letters to which she did not receive any response, these allegations need to be placed in context. There is no dispute that the applicant consistently raised disability and accommodation issues with the Town. She frequently appeared to make delegations before Town Council. In the context of the events at issue in her complaint, the applicant actually was invited to a personal meeting on February 9, 2006 with the Town Councillor who sat on the Town’s Accessibility Advisory Committee to discuss the issues she was raising. In this context, while it may be that a few pieces of correspondence from the applicant went without a response, I cannot find that the applicant lacked for access to the Town’s decision-makers or an opportunity to have herself heard. The opportunity to participate and be heard in the municipal decision-making process does not, however, come with a guarantee that the specific result the applicant wishes for will be achieved. As a result, in relation to these allegations, I find that when viewed in their overall context, the applicant did not experience discrimination because of her disability in relation to her ability to participate in the municipal decision-making process.

[20] The applicant next alleges that she found a statement made by the Town’s Chief Administrative Officer (“CAO”) in a letter dated November 15, 2005 to be “offensive”. The applicant had written a letter to the Town Council dated November 9, 2005, in which she raised a concern that a gravel parking lot that she understood was being proposed for some property recently purchased by the Town would not be accessible. The applicant relied on certain local newspaper articles as the source of her information that the parking lot would be gravel. In response, the CAO wrote a letter with the sentence: “Please allow me to clarify your perceptions”. He then goes on to set out the Town’s intentions with regard to this property.

[21] The applicant alleges that this statement implies that there is something wrong with her perception as a person with a disability. In my view, there is nothing in the letter to support such an implication. Rather, the CAO is expressing the Town’s position on an issue raised by the applicant, which differs from her allegation that the Town is not complying with any obligation it may have had to make this specific parking lot accessible. As a result, even if the content of a letter from a municipality’s CAO falls within the scope of “services” under the Code, about which I express no conclusion in this case, I do not find that this allegation supports any prima facie violation of the Code.

[22] The applicant alleges that at a Council meeting on December 12, 2005, certain statements were made by Councillors, which she alleges violate her rights under the Code. The applicant requested and was granted the opportunity to make a delegation to Council at the December 12, 2005 meeting. Her delegation related to the CAO’s letter of November 15, 2005 and expressed her view that the letter was offensive, provided support for her understanding that the parking lot would be gravel, raised issues about whether a gravel parking lot would be in compliance with the Town’s legal obligations, and raised the issue of Town staff responding to letters sent to Town Council.

[23] The complaint alleges that in response, one Councillor stated, “I resent this delegation”, while another Councillor asked her to face the audience and tell them about the “good things the Town has done for accessibility”. The applicant stated in her evidence at the hearing that she regards these statements as discriminatory because they were not responsive to the issue she was raising, which was the CAO’s letter. Instead, the applicant testified that these statements relate to her prior human rights complaint against the Town and her having raised issues about the accessibility of the Town’s public library.

[24] It is not at all clear to me from the face of the applicant’s allegations that the statements attributed to these two Councillors relate to her prior human rights complaint. Nor is it clear to me that their alleged statements are not responsive to the applicant’s delegation which, while focused on the CAO’s letter, also dealt with the Town’s accessibility obligations. I am aware that the precise words used by these Councillors is a matter in dispute between the parties, and I have not yet heard their evidence. However, even if I were to accept the applicant’s version in its entirety, in my view, the comments attributed to these Councillors are an indication of their belief that the applicant was being unfair to the Town and to Town Council in relation to their efforts on accessibility issues. While these statements may be somewhat defensive on the part of these Councillors and whether or not the making of statements at a Town Council meeting is a “service” under the Code (about which I make no finding in this Decision), I do not find that the mere making of statements of this nature amounts to discrimination because of disability in violation of the Code.

[25] The applicant raises an allegation about an Official Plan public meeting held on July 31, 2006. She states that at this meeting, she put up her hand to speak but was not recognized, even though a number of other people who put up their hands were invited to speak. The applicant states that when her husband, who was sitting beside her, put up his hand, he was immediately invited to speak. She then took over his turn to speak and presented her remarks.

[26] The applicant also made a written submission regarding the Town’s Official Plan. I have documents in evidence before me indicating that the applicant’s submission, along with a number of other oral and written submissions, were reviewed, summarized and responded to by the Town’s Planning Coordinator. The documents further indicate that the views that the applicant expressed orally at the July 31, 2006 meeting were summarized and responded to by the Town’s Planning Coordinator.

[27] I am not at all clear that “services” under the Code as it relates to a municipality’s Official Plan process extends so far as to cover a person’s ability to get recognized and speak at an Official Plan public meeting. However, even if it does, I find that I do not have sufficient evidence before me to satisfy the applicant’s obligation to present a prima facie case of discrimination because of disability. The sum total of her evidence is that other people, including her husband, who put up their hands to speak were recognized, while she was not. This does not provide a sufficient basis to support the allegation that the applicant was not invited to speak because of her disability, as opposed to any other of a number of reasons that this may have happened, for example that her views on the issue already were well known.

[28] The final allegations raised by the applicant relate to the public library. As this is a facility operated by the Town, there is no question that the ability to access this facility falls within the scope of s. 1 of the Code.

[29] The applicant first states that as of September 5, 2006, there was no proper signage for an accessible parking space in the parking lot next to the library. However, in her evidence before me, she acknowledged that there was an accessible parking spot in the parking lot – just that it lacked the appropriate signage. The applicant raised a further concern about this parking spot, which was not set out in her complaint or in her Statement of Additional Facts, and which I ruled was beyond the scope of the proper subject-matter of her complaint. There is no dispute that signage for this parking spot subsequently was put in place.

[30] The applicant further states that as of September 27, 2006, the only accessible sidewalk from the library parking lot led to the rear elevator entrance and the slope was too steep. The applicant testified that the sidewalk leading to the front elevator entrance was made of cut stone. The sidewalk to the rear elevator entrance was smooth concrete, but the applicant testified it was steep. Nonetheless, the applicant acknowledged in her evidence that she personally had no difficulty in accessing the library using the rear elevator entrance.

[31] In my view, the evidence does not support that the applicant personally experienced discrimination or disadvantage in relation to her ability to access the Town’s public library. While there may not have been a sign, there was an accessible parking space. While she may not have been able to walk on the cut stone sidewalk, she was able to use the concrete sidewalk. While she may have regarded the grade as too steep, her evidence is that it did not pose any difficulty for her in accessing the library. In these circumstances, I find that the applicant’s rights under the Code were not violated in relation to her ability to access the Town’s public library.

[32] Finally, in her Statement of Additional Facts, the applicant raised certain allegations pertaining to events which post-date the complaint she filed with the Commission. Pursuant to s. 53(5) of the Code, a transitional application filed under that provision must be based on the subject-matter of the complaint as filed with the Commission. This Tribunal has held it will not consider post-complaint allegations in the context of a transitional application in the absence of exceptional circumstances: see DeFreitas v. Ontario Public Services Employees Union, [2010 HRTO 281](https://www.minicounsel.ca/hrto/2010/281). Accordingly, I ruled at the hearing that I would not consider post-complaint allegations.

[33] For all of these reasons, the Application is dismissed.

Dated at Toronto, this 18th day of May, 2011.

“signed by”

Mark Hart

Vice-Chair