Wozenilek v. The Book Shelf of Guelph Limited, 2012 HRTO 264

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mathew Wozenilek

Applicant

-and-

The Book Shelf of Guelph Limited o/a The Bookshelf and Guelph Jazz Festival & Colloquium

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: February 7, 2012

Citation: 2012 HRTO 264

Indexed as: Wozenilek v. The Book Shelf of Guelph Limited

APPEARANCES

Mathew Wozenilek, Applicant ) Self-Represented

The Book Shelf of Guelph Limited, Respondent ) Doug Minett, Representative

Sorbara Schumacher McCann LLP, Respondent ) Greg Murdoch, Counsel

Random House of Canada Ltd., Respondent ) Darryl Hiscocks, Counsel

Nicholas Ruddock, Respondent ) James Ruddock, Counsel

Guelph International Jazz Festival, Respondent ) Philip Zachariah, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). At the heart of the Application is the applicant’s allegation that he was unable to access parts of a building in which the respondent book store, The Book Shelf of Guelph (the “Book Shelf”), is located.

2He has identified two events in particular: an art auction fundraiser held by the Guelph Jazz Festival and a book reading where a local author, Nicholas Ruddock, read from a newly published work. In addition to the Book Shelf, the applicant has named as respondents the Guelph Jazz Festival, Sorbara Law (because it contributed money to the Guelph Jazz Festival), Nicholas Ruddock and Random House (publisher of respondent Ruddock’s book).

3A preliminary hearing was scheduled to address various Requests for Order during Proceedings made by a number of the parties to this Application. Following the hearing, the parties were directed to file additional written requests and submissions in writing in accordance with timelines outlined during the course of the preliminary hearing.

4This Interim Decision deals with the following issues:

(a) All respondents, other than the Book Shelf, request that the Application be dismissed as against them on the basis that they did not provide a good, service or facility to the applicant and that no service relationship exists as between them and the applicant;

(b) All five respondents request that the Application be dismissed under section 45.1 of the Code, on the basis that a previous complaint to the Ontario Human Rights Commission (OHRC File No: NMYS-3VTHAS) against the respondent The Book Shelf of Guelph Limited appropriately dealt with the substance of the present Application; and

(c) Finally, the applicant seeks production of documents relating to the decision of the Ontario Human Rights Commission in OHRC File No: NMYS-3VTHAS against the respondent The Book Shelf of Guelph Limited.

ISSUE 1: Social Area of goods, services or facilities

5Section 1 of the Code reads as follows:

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.

6The respondents Sorbara Law, Random House, Nicholas Ruddock and the Guelph Jazz Festival have all sought to be removed as respondents as they take the position that they did not provide a service to the applicant.

7They argue that they do not own, control or manage the venue to which the applicant was prevented from gaining access for reasons relating to his disability.

Sorbara Law

8Sorbara Law argues that it made a charitable donation to a community event, specifically the Guelph Jazz Festival. As a donor, it had no control, ownership or management power over the way in which the festival operated or the venues it chose for events it ran, including the charitable art auction that took place at the Bookshelf’s premises.

9The applicant argues that the definition of service is a broad one. He says that everyone should be responsible for ensuring access to facilities and that the named respondents other than the Book Shelf, such as Sorbara Law, which is listed as having sponsored or presented the art auction, have a duty not to condone a violation of the Code.

10Sorbara Law, in response, says that it took all reasonable steps once made aware of the applicant’s concerns. It wrote to both the Guelph Jazz Festival as well as the Book Shelf. It argues that it could not do more and that the applicant’s solution appears to be that it should stop contributing funds to community groups and that is no solution at all.

11In my view, the central question raised by the applicant in this Application involves accessibility and, in particular, access to the art auction and book reading events. Those parties named as respondents who had no role in providing, facilitating or preventing access to those events have such a remote connection to the issue at the heart of the Application that it would serve no useful purpose to continue the Application as against them.

12I agree that Sorbara Law’s connection to the Application in this instance is remote and that its involvement in the Jazz Festival event amounted to making a charitable donation that did not bring with it any control over the manner in which this particular fundraising event (the art auction) was conducted. As such, there is no service being provided by it to the applicant and Sorbara Law is removed as a respondent.

Random House

13Similarly, Random House’s involvement does not involve provision of a service to the applicant. It is clear from the materials filed and the submissions I have heard that Random House, the publisher of the book authored by Dr. Nicholas Ruddock, did not seek out this opportunity for Dr. Ruddock, nor did it arrange the book reading event or select the location. It merely contributed a very small amount of money to cover some costs of the event.

14I note also that the applicant contacted Random House to lodge a complaint after the book reading had taken place. It is not at all clear from the materials filed or the submissions what action he expected Random House to take at that stage of the events in question. However, he makes the same argument with respect to Random House as with Sorbara Law (see paragraph 9 above), that all participants have a responsibility to ensure access to events with which they are involved.

15For the reasons outlined above, Random House is removed as a respondent.

Nicholas Ruddock

16The submissions of both Dr. Ruddock and the owner of the Book Shelf was that the latter extended an invitation to the former because he was a newly published local author. He did not solicit or seek out the invitation, had no control over the accessibility of the location and did not provide a service to the applicant directly. However, he says that when he was made aware of the problem, he offered to assist the applicant by having a few people carry him upstairs so he could participate in the event if he wished, an offer the applicant rejected as unacceptable.

17As with Sorbara Law and Random House, Nicholas Ruddock is removed as a respondent.

Guelph Jazz Festival

18The position of the Guelph Jazz Festival (the “Festival”) is, in my view, different. The Festival chose this particular location to hold its event and was the host of the auction that the applicant alleges he had trouble accessing. There is a service relationship in this instance and the Application will continue as against the Festival.

ISSUE 2: Whether section 45.1 of the Code applies

19Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

20The remaining respondents argue that the Application should be dismissed under section 45.1 of the Code, on the basis that a previous complaint to the Ontario Human Rights Commission (OHRC File No: NMYS-3VTHAS) against the respondent The Book Shelf appropriately dealt with the substance of the present Application. That complaint involved a complainant not connected to the present Application.

21The respondent Book Shelf argues that it was a respondent in a previous complaint by another complainant approximately a decade ago, in which substantially the same allegations of lack of access were raised, investigated and dealt with by the Ontario Human Rights Commission (the “Commission”).

22The owner of the Book Shelf argues that he spent a considerable sum of money on that occasion compiling an extensive array of evidence to persuade the Commission investigator that it was not feasible for practical and/or architectural reasons, as well as financial ones, to arrange for an elevator or stair lift to be installed in the building to facilitate access to the second floor. He further states that it is generally acknowledged that the financial situation of the independent bookseller in the industry is arguably worse now, ten years later. He wonders why he is being required to duplicate the exercise when the human rights agency charged with ensuring and promoting compliance with Code principles at the time fully investigated and found that he could not make the accessibility changes without undue hardship.

23Finally, he argues that section 45.1 does not talk about the same parties having litigated the issue but that it refers to the substance of the matter before the Tribunal. He says the substance of the matter, that of accessibility, was appropriately dealt with in the Commission proceeding.

24The applicant, for his part, argues that he cannot be bound by a previous complaint to the Commission about which he still has no reliable information, regarding which he has made no submissions and which may have been dealt with on the basis of out-of-date information.

25He points out that the few details he has been provided about the previous Code complaint suggests to him that it does not address all of the issues he has raised, even with respect to accessibility, given that the focus of the previous complaint may have involved access to the second floor of the building only. The substance of his Application, he says, is broader in scope and alleges not only that he is unable to attend events held on the second floor but that he cannot access other parts of the building in question.

26The respondent Book Shelf, in reply, says that it does not have access to the full file maintained over the life of the previous complaint and that it would have provided it if it had been in its possession. It indicates it would have no objection to the Commission providing access to the parties in this Application to that file as it is arguably relevant to the issues central to this matter.

27While the respondent Book Shelf’s position and the frustration expressed is understandable, I note that the Commission complaint dates back a decade, it involved another complainant and, perhaps, addressed the issue of access to the second floor venues and not the building generally. I also note that it did not result in a public hearing before the Tribunal followed by a Decision but was concluded after the investigation process.

28I find that it is not necessary for me to decide whether an investigation by the Commission that did not result in a referral to the Tribunal is a proceeding within the meaning of s. 45.1 as the substance of this Application was not addressed during that process.

29I am unable to conclude that the Commission investigation of a complaint made ten years ago by a complainant entirely unconnected to this applicant, involving allegations that did not necessarily address all the accessibility issues raised by this Application, addressing circumstances that existed over ten years ago, which was dealt with before referral to the Tribunal and about which no information is publicly available dealt with the substance of the Application or should result in the dismissal of this Application on the basis of s.45.1 of the Code.

ISSUE 3: Access to Contents of Commission File (OHRC File No: NMYS-3VTHAS)

30It appears that the contents of the Commission’s file are arguably relevant to these proceedings. The Tribunal recognizes that there may be sensitive information concerning the previous complainant contained in the Commission file that will likely need to be redacted in advance.

31A copy of this Interim Decision will be forwarded to the Commission. The Tribunal directs that the Commission provide its position with respect to release of the contents of OHRC File No. NMYS-3VTHAS to the remaining parties and the Tribunal within three weeks of the date of this Interim Decision.

32Upon receipt of the Commission’s submissions, further directions may be issued with respect to next steps.

ORDER

33Sorbara, Schumacher, McCann LLP o/a Sorbara Law, Random House of Canada Ltd., and Nicholas Ruddock are removed as respondents and the style of cause will be amended accordingly.

34A copy of this Interim Decision shall be forwarded to the Ontario Human Rights Commission. The Tribunal directs that the Commission provide its position with respect to release of the contents of OHRC File No. NMYS-3VTHAS to the parties to this Application and to the Tribunal within three weeks of the date of this Interim Decision.