HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ivan Williams
Applicant
-and-
Corporation of the Town of Iroquois Falls
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Williams v. Town of Iroquois Falls
APPEARANCES
Ivan Williams, Applicant
Self-represented
Corporation of the Town of Iroquois Falls, Respondent
David Foster, Counsel
Introduction
1This is an Application dated September 29, 2010 and filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability.
2The hearing in this matter was held in Iroquois Falls on March 14, 2012 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure, that applications proceed in an expeditious manner as befitting the issues raised. I heard evidence from the applicant, the Town Treasurer and the Assistant Director of Public Works.
Background
3The applicant is a person with significant mobility impairments due to various medical conditions which have deteriorated over time. He has been required to use a wheelchair since March 2010. There is no question that he is a person with a disability within the meaning of the Code and the respondent did not challenge this.
4The applicant lives in a house in Iroquois Falls. In winter, whenever there is a severe enough snowfall, the Town uses snowplows to clear the roadways. As will be familiar to most Canadians, the snowplows clear the snow away from the center of the street and create a ridge of snow at the bottom of private driveways (known as a “windrow”).
5The applicant alleges that the creation of this windrow at the bottom of his driveway creates a barrier for him as a person with a disability, and wants the Town to take steps to remove this windrow whenever it is created by snowplowing. The applicant raised this issue with the Town by letter dated May 21, 2010, asserting that the Town’s failure to remove the windrow amounted to discrimination against him because of disability contrary to the Code.
6The Town considered the applicant’s request and ultimately responded by letter sent to the applicant’s then legal counsel on September 10, 2010. In this letter, the Town took the position that its snow removal practices were not discriminatory. The Town stated that its snow removal policies do not provide for the removal of snow on private property or the removal of windrows left behind by the passing of snow removal equipment, and that such snow removal is the responsibility of the property owner. The Town also took the position that establishing policies and programs to provide for the removal of windrows in front of private residences would burden the Town too onerously. As a result, the Town indicated that it was not able to assist the applicant with his request.
7The applicant commenced this Application shortly after receiving the Town’s response to his request.
Has the applicant experienced discrimination because of the Town’s snow removal practices?
8The first issue before me is to determine whether the applicant has experienced discrimination in respect of services as a result of the Town’s snow removal practices and the creation of a windrow at the bottom of his driveway.
9In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143, the Supreme Court of Canada offered the following definition of “discrimination” which has been oft-quoted and relied upon in this Tribunal’s caselaw:
. . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
10In view of this definition of discrimination, one question for me is whether the Town’s snow removal practices have the effect of imposing a burden, obligation or disadvantage on the applicant because of his disability.
11The applicant’s position is that the creation of the windrow at the bottom of his driveway imposes a burden on him because of his disability, because his disability prevents him from shovelling the snow as others without disabilities can and because the windrow impedes his ability to access the roadways with his wheelchair in order to get to the services he needs.
12While the foregoing is true, in assessing whether there is a burden imposed upon the applicant, I need to consider the broader context and circumstances. The applicant does not dispute his own personal responsibility for clearing the snow from his private driveway. It also is clear that at least since the applicant obtained his wheelchair in March 2010, he has been unable due to his disability not only to clear the windrow but also to shovel the snow on his private driveway. In order to clear his driveway, the applicant has made arrangements with a private contractor to plow out the snow at a cost of $15 per occasion. This cost includes plowing out both the windrow and the applicant’s private driveway. At the hearing, when asked what the cost would be to plow out his private driveway excluding the windrow, the applicant responded that the cost would still be the same $15 per occasion.
13In these circumstances, I find that no additional burden or disadvantage is imposed upon the applicant as a result of the creation of the windrow at the bottom of his driveway. In order for him to access the roadway in order to get to the services he needs, the applicant needs not only to have the windrow cleared but also needs to have his own private driveway cleared. As he is unable to clear the snow himself due to his disability, the applicant has to incur a cost which is the same whether or not the Town clears the windrow.
14At its root, in his evidence before me at the hearing, the applicant believes that the Town should “clean up its own mess”, meaning that the Town is responsible for creating the windrow and the applicant therefore believes that the Town should be responsible for clearing the windrow. I have no doubt that this is a sentiment shared by many Canadian citizens who have dutifully shovelled out their driveway only to have a snowplow come along and create a windrow. But in the absence of evidence establishing a burden or disadvantage related to the applicant’s disability, a belief that the Town should be responsible for cleaning up its own mess does not amount to discrimination in violation of the Code.
15I have tremendous sympathy for the applicant. He is unable to work due to his disability and relies upon the Ontario Disability Support Program to sustain himself. The evidence before me shows that he has very little money to spare on paying the cost of having his driveway plowed. He has made various attempts to obtain community assistance to help him with this cost, to no avail. However, I note that this same financial hardship would exist for the applicant whether or not the Town cleared the windrow, as he would need to incur the same cost in order to have his private driveway plowed. As a result, however sympathetic I may be to the applicant’s financial circumstances, they do not provide a proper basis upon which I can find discrimination in violation of the Code.
16Accordingly, I find that the applicant has not provided a basis upon which I can find discrimination in the provision of services contrary to s. 1 of the Code. In making this finding, it is not necessary for me to consider whether or not the creation of a windrow as a result of the Town’s snow clearing practices is “with respect to services” within the meaning of s. 1 of the Code, and I leave that question open for another case.
Would clearing windrows create undue hardship for the Town?
17Given my finding that the applicant has not established discrimination, it is not strictly necessary for me to address the issue of whether imposing an obligation on the Town to clear windrows would create undue hardship. This issue would arise only if the applicant had been able to prove that he experienced discrimination because of disability, which I found he has not, and also only if the creation of windrows due to the Town’s snow clearing practices can be regarded as being “in respect of services” within the meaning of s. 1 of the Code, which again is an issue I have left for another day.
18However, I received considerable evidence regarding the Town’s snow clearing practices and whether it was possible to engage in practices that would not create a windrow in the first place or what the cost would be for the Town to clear the windrows. As this is an issue that affects many Ontario municipalities and as this issue was canvassed before me in the parties’ evidence and submissions, in my view it would be helpful to address the evidence and submissions I heard on this point.
19The first issue canvassed in the evidence was whether there was a means by which the Town could adopt snow clearing practices that avoid creating a windrow in the first place. While the applicant in his materials disputed the Town’s position that the only means of clearing windrows would be to engage a separate team of employees with equipment to remove the windrows, the applicant did not provide any specific suggested alternatives prior to the hearing. At the hearing, the applicant gave evidence that he believed the Town had a snow clearing machine that has a straight-edged bucket at the front as well as an angled plow. His suggestion was that the angled plow could be used in between driveways and that the straight-edged bucket at the front could be lowered and used to clear the snow in front of driveways, which he believes would not result in the creation of a windrow.
20The Town had not intended to call the Assistant Director of Public Works to testify at the hearing, but arranged for him to appear as a witness to address this point. The Assistant Director’s evidence is that the Town does not possess a snow clearing machine as described by the applicant. He testified that the machine (a “motor grader”) that is used to clear the snow on the road where the applicant lives has an angled blade underneath the machine as well as a snow wing on the right side of the machine which are both used to clear snow from the roadway. This machine also has a large blade at the front which is used for heavy snow conditions, but his evidence is that this blade is in a fixed position and is also angled to the right, so windrows would still be created.
21The Assistant Director also testified that the Town does have front end loaders which have a straight-edged bucket at the front, but which do not have an angled snow clearing blade. The front end loaders are used to clear snow from parking lots, where they push and lift the snow to remove it. The Assistant Director’s evidence was that it would not be practical to use a front end loader to clear snow from the roadways, as excess snow would leak out from both sides of the straight-edged bucket and create windrows not only at the bottom of private driveways but also in the middle of the road, which would not clear the roadways of snow and would therefore defeat the primary service provided by the Town. The Assistant Director’s evidence also indicates that the front end loaders are already engaged in other necessary snow clearing services, and therefore would not be available to clear roadways.
22On the basis of the evidence before me, I am not satisfied that there is any practical or realistic alternative to the Town’s current snow clearing practices that would prevent the creation of windrows. The applicant stated in his final submissions that he has seen machines used in Pickering and Newcastle which have the ability to avoid the creation of windrows, but did not provide any specific evidence about these machines or their cost. Having lived in Toronto for all of my adult life, I have some awareness that there may be snow clearing machines used in North York that are capable of clearing windrows while plowing the roadways. However, this is not a matter which is appropriate for me to take judicial notice of, in the absence of any evidence tendered before me regarding the nature of such machines, their cost, and the financial impact on the Town of replacing its current snow clearing equipment with any such machines as may be used in Pickering, Newcastle or North York. While the respondent has the burden of proving undue hardship, I note that the existence of a machine that could plow the roads without creating windrows was not raised by the applicant in his Application or Reply or in any materials filed by him prior to the hearing. In these circumstances, in my view, I would not expect the respondent to provide evidence regarding the existence of these machines or their cost. In other circumstances, where such issue is raised prior the hearing, a respondent may be required to provide such evidence as part of its defence in proving undue hardship.
23The only practical and realistic means for the Town to clear windrows based upon the evidence before me is for the Town to use employees and equipment to go around and remove the windrows in individual driveways. The Town’s evidence is that in winter and particularly following a snowfall, its existing employees are already fully engaged with snow clearing activities, such that the Town does not have existing employees to spare to go around and remove windrows. As a result, the evidence before me is that the Town would need to hire additional employees to complete any such work. The evidence before me is that the Town would be required to hire two additional employees to undertake this work: one employee to operate the snow removal equipment and one employee to act as a flagperson to deal with traffic. The cost for these two additional employees was indicated to be $47 per hour including the cost of benefits. The Treasurer testified that the machine operator would need to be paid $26 per hour and the flagperson would be paid a little less. The Town’s evidence also indicates that the cost of operating the snow removal machine (called a “loader” in the evidence before me) that would need to be used to clear windrows would be $28 per hour, which includes depreciation, operating and financing costs. As a result, the total hourly cost to remove windrows, including employee and machine costs, was stated to be $75 per hour. I have no basis in the evidence before me to dispute these hourly costs.
24The Town also estimated that it would take about 20 minutes for a loader to clear the windrow from one driveway, which was stated to include travel time from one driveway to the next. While the applicant expressed his view that this over-estimated the time required, I have no specific evidence before me to dispute this figure. While I agree that it should not take 20 minutes simply to clear a windrow from one driveway, I note that the Town’s estimate is based upon not just the work in clearing the snow but includes travel time. In my view, when including travel time, I do not find the Town’s estimate to be unreasonable.
25In terms of the total cost of removing windrows, the Town relied upon the 2006 Statistics Canada Participation and Activity Limitation Survey as a basis to estimate the number of persons with disabilities who reside in the Town. The Town relied upon the data indicating that the percentage of persons with disabilities of all ages in Canada in 2006 was 14.3%. According to the 2010 Ontario Population Report, the Town’s total population count was 4,145. Assuming that the percentage of persons with disabilities within the Town was consistent with the national average, the Town estimated that there would be about 600 persons with disabilities in the Town (14.3% x 4,145 = 593).
26Given the broad range of types of disabilities, some of which may have little or no impact on a person’s ability to clear snow, I suggested to the Town Treasurer and she agreed with me that a more useful estimate of the number of persons who may need assistance with clearing windrows would be derived from the table in the Statistics Canada survey showing adults with disabilities who need help with everyday activities (Table 5) and in particular the number requiring help with “heavy household chores” (there is no separate category for those requiring help with snow shovelling). Based upon the numbers from the survey, the percentage of adults with disabilities requiring help with heavy household chores is 6.9%, which would mean that there would be about 286 such individuals in the Town (6.9% x 4,145).
27In addition, the Statistics Canada survey further breaks the population down into those adults with disabilities requiring assistance with heavy household chores who are receiving all the help they need and those who are receiving help but need more or are not receiving help but need some. If one were to exclude adult persons who were receiving all the help they need, on the basis that these individuals may have other persons in the household or neighbours, friends or other resources who can clear snow for them, and only focus on those who need some or more help with heavy household chores, this would reduce the percentage of those who may require the Town to remove windrows to 2.55% of the Town’s population or 106 persons.
28While the Town Treasurer agreed with the proposition that the appropriate percentage to consider was not the total number of persons with disabilities of all ages but the number of adult persons with disabilities who need help with heavy household chores, she resisted the lowering of the percentage to 2.55%. She based this resistance on the fact that the Town has an older population than the national average, with 52% of the Town’s population being 55 years of age and older and 19% being 65 years of age and older, such that the incidence of persons with disabilities in the Town may in fact be higher than the national average. In addition, she noted that there may be older individuals, for example those with a heart condition, who may not describe themselves as persons with disabilities but who may nonetheless require assistance with clearing snow as a result of their medical condition. As a result, the Town Treasurer cautioned against lowering the estimate of the number of individuals who may require assistance with clearing snow too much.
29There is no precise evidence available to ascertain the exact number of households in the Town that would require assistance in clearing windrows due to a disability as that term is broadly defined in the Code. In my view, 6.9% of the Town’s population over-estimates the number of households that would require such assistance on a number of bases, including the fact that some persons with disabilities needing help with snow shovelling may already be receiving all the help they need or may be living in residences such as apartments where they are not required to shovel snow. At the same time, based upon the evidence of the Town Treasurer and the demographics of the Town’s population, I am cautious about revising the estimate down too low given the older population in the Town and the potential under-inclusion of persons requiring assistance with snow shovelling in the Statistics Canada survey. In my view, based upon the evidence before me, a reasonable estimate of those requiring assistance with snow removal is somewhere between 2.55% and 6.9% and is probably somewhere in the range of 5% or about 200 residents of the Town.
30Before I proceed further, I need to address one argument put forward in the materials filed on the applicant’s behalf, which is that I should assess undue hardship solely on the basis of the cost to clear the windrow from the applicant’s driveway and not from the driveways of other residents of the Town who also may require such assistance due to disability. This position is put forward on the basis that accommodation for persons with disabilities can be phased in over a period of time in order to offset the costs and that interim accommodation can be provided to a specific individual while overall accommodation is being phased in.
31I do not necessarily disagree with these general principles asserted on behalf of the applicant. However, it seems to me that those general principles are more aptly applied in the context of accommodation relating to the capital costs of creating accessible infrastructure as opposed to the ongoing annual cost of providing accommodation as would be required in this specific situation. In this specific context, I do not believe that it is appropriate to consider whether undue hardship would be imposed upon the Town arising solely out of the cost of removing the windrow at the bottom of the applicant’s driveway. The Town has an equal obligation to all of its residents with disabilities that prevent them from being able to clear snow, and in my view it would not be appropriate to separate out the Town’s obligation to all such residents from any obligation it may have specifically to the applicant. In addition, the evidence before me indicates that other residents of the Town besides the applicant also have raised the issue of windrow removal. Accordingly, in my view, the most appropriate manner to assess undue hardship in the context of the specific situation that arises in the context of this case is to assess undue hardship on the basis of the Town’s overall obligation to all of its residents with disabilities.
32Having said that, I remain concerned that the data before me provides a basis only to estimate the number of individuals in the Town who may require such assistance because of disability, as opposed to having more precise evidence as to the actual number of such individuals. As I have found that the applicant has not experienced discrimination because of disability in the specific circumstances of this case, my concern about the absence of an actual number is a moot point. However, in another case, if discrimination because of disability were to be established and if the creation of a windrow as a result of that municipality’s snow clearing practices were found to be “in respect of services” within the meaning of s. 1 of the Code, more precise evidence regarding the overall need for windrow clearing because of disability may be required in order to establish undue hardship. For example, it seems to me that a municipality could engage in an assessment process with its residents on the basis that it is considering whether it is feasible to clear windrows for residents with disabilities, and invite residents with disabilities who require such a service to indicate their need and provide proof that this need results from a disability. Such evidence would then provide an actual number of residents requiring such service and a more concrete basis for assessing undue hardship.
33The evidence before me indicates that the Town experiences an average of 25 “snowfall events” per winter season where the snowfall is above 5 cm, which require the use of snowplows to clear the roadways and thereby create windrows. In addition, the evidence indicates that windrows also are created when the Town is conducting snow removal with the blower and when the warm weather breaks up the snowpack on the roadways. The evidence before me from the Assistant Director is that the blower is used once per season to pick up large amounts of snow. The Town’s evidence is that in addition to snowfall events, there are another 10 to 15 plowing events per season not attributable to snowfall events. The Town’s overall cost estimates are based upon a total of 35 snowplowing events per season. In the absence of any evidence to contradict this, I accept this estimate.
34On the basis of the estimates indicated above, the number of hours required to remove windrows per snowplowing event for all residents requiring such assistance due to disability would be 67 hours per event (20 minutes x 200 residents). Over the course of the winter season with 35 such events, the total number of hours required would be 2,345 (67 x 35). At a cost of $75 per hour, the total annual cost to the Town would be $175,875.
35In 2010, the Town’s total tax revenue was $5.8 million. The Town Treasurer testified that the Town was confronting a reduction in its industrial tax base for 2012, in the approximate amount of $400,000. As a result, the Town was currently budgeting on the basis of overall revenue of $5.6 million ($6 million less $400,000). She testified that the Town had raised taxes by 2% in 2011. In order to afford an additional expense of $175,875, the evidence before me indicates that the Town would need to raise taxes by an additional 3%. The Treasurer testified that given the older demographics of the Town, such a tax increase would not be sustainable.
36The Town Treasurer testified that the 2012 budget for snow removal is $570,000. Given the budgetary constraints faced by the Town’s diminishing revenue, the Town has been looking for ways to reduce its snow removal budget. She testified that the Town had been successful in reducing its winter control costs by $50,000 in 2011 due to revised service levels on highways as part of its effort to find cost savings in order to balance the budget. She testified that the Town hoped to identify further savings of approximately $10,000 as a result of a change in its salting practices. In this context, where the Town is searching to identify savings to reduce its winter control costs in order to balance its budget, the Treasurer testified that the Town could not afford to take on an additional $175,000 in costs.
37In assessing this evidence, I am mindful of the fact that the Town of Iroquois Falls is a small community with an aging population and a diminishing industrial base. Because of its location in Northern Ontario, winter control costs already consume a significant portion of its overall budget (approximately 10%). An additional $175,875 in costs for windrow removal would represent a 31% increase in the Town’s existing budget for snow removal, at a time when there is significant budgetary pressure to decrease costs. While it would be easy to say that this cost could be defrayed by a 3% tax increase, in my view I need to be mindful that this would represent a significant tax increase for residents of the Town who are older and are confronting a difficult local economy. In my view, imposing such a significant additional cost on the Town and its residents would be disproportional in the overall budgetary and economic context and would constitute undue hardship.
38In reaching this conclusion, I also am mindful that the Town did consult with other nearby Northern Ontario municipalities to see whether they provided windrow removal for residents with disabilities, and they do not. The applicant provided hearsay evidence from his brother who lives in Bowmanville, who told him that the municipality removes windrows there for residents with disabilities. Apart from the fact that this is hearsay evidence, there is no specific evidence before me regarding the cost to that municipality of providing any such service in the context of its overall budget. I do note that Bowmanville is in Southern Ontario, and therefore may face significantly less snowplowing events that a Northern Ontario community like Iroquois Falls.
39In consideration of all of the circumstances and evidence before me, I find that the cost of providing windrow removal for residents with disabilities would impose undue hardship on the Town of Iroquois Falls. I note that I make this finding on the basis of the estimate of the overall cost of providing windrow clearing services to all residents with disabilities who may need this assistance, and in the absence of evidence regarding the actual number of residents. I also make this finding on the basis of the total cost of providing this service to all such residents, and have not considered the possibility that the Town could provide this assistance, for example, to a limited number of residents with disabilities on a first come, first served basis. As I have found that the applicant did not experience discrimination in the specific circumstances of this case, I will leave for another day whether, in order for a municipality to establish undue hardship, it would need to provide more precise evidence as to the actual number of residents with disabilities who require such assistance and also may need to address the feasibility of potentially providing this assistance to at least some of its residents with disabilities.
40I note that in some of the materials filed by the Town, an issue was raised about potential safety and liability concerns, but this issue was not pursued at the hearing and no specific evidence was tendered to support such concerns. Accordingly, I did not consider any such safety or liability concerns in reaching my conclusion regarding the issue of undue hardship.
41For all of the foregoing reasons, the Application is dismissed.
Dated at Toronto, this 30th day of July, 2012.
Signed by
Mark Hart
Vice-chair```