Bourdeau v. Kingston Bazar, 2012 HRTO 393

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karoline Bourdeau Applicant

-and-

Kingston Bazar Respondent

DECISION

Adjudicator: Judith Keene Date: February 24, 2012 Citation: 2012 HRTO 393 Indexed as: Bourdeau v. Kingston Bazar

APPEARANCES

Karoline Bourdeau, Applicant ) Self-represented Kingston Bazar, Respondent ) No one appearing

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 16, 2010.

2On November 4, 2010, the Tribunal delivered a Notice of Application to the respondent. The respondent was advised that a Response must be filed with the Tribunal by December 9, 2010.

3On January 24, 2011, the Tribunal issued Interim Decision 2011 HRTO 158 (“the first Interim Decision”). The first Interim Decision noted the respondent’s failure to file a Response, and gave the respondent until February 3, 2011, to file a Response together with an explanation of why the Response was not filed in accordance with the original Notice of Application. The first Interim Decision quoted Rule 5.5:

Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

4The Interim Decision stated that, if a Response was not received, the Tribunal might proceed without further notice to the respondent and could take any or all of the steps set out in Rule 5.5. The Tribunal sent a copy of the Interim Decision to the respondent by regular mail and courier. The respondent did not file a Response, nor has the Tribunal’s correspondence to it been returned. I am satisfied that the respondent received the first Interim Decision.

5On March 10, 2011, the Tribunal issued a second Interim Decision, 2011 HRTO 494 (“the second Interim Decision”), concluding that the respondent refuses or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal ordered that the respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding, and that the Tribunal would proceed without the participation of the respondent, deeming the respondent to have waived its right to participate pursuant to Rule 5.5(c) and further deeming the respondents to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

6The copy of the second Interim Decision that was couriered to the respondent was returned with the notation that the respondent was no longer at that address. However, in my view, the first Interim Decision gave the respondent adequate notice of the consequences of failure to respond.

7Before the final determination of the Application, I issued a Case Assessment Direction dated April 21, 2011, asking the applicant to advise the Tribunal of the specific nature of her disability, as well as to provide the Tribunal with any contact information of the respondent that she might have as well as any other written information she might wish to file. The applicant was provided an opportunity file any documents or materials she wished the Tribunal to consider, and to make oral submissions via teleconference.

8On August 22, 2011, the applicant sent the Tribunal new contact information (a new street address) for the respondent.

9A Notice of Confirmation of Hearing by conference call was sent by the Tribunal on December 19, 2011. Pursuant to the second Interim Decision, the respondent had been deemed to waive all rights to further notice of the proceedings. However, given the new information about the respondent’s change of street address, the Notice was sent to the respondent at the new address, by regular mail, as well as to the applicant. The Notice to the respondent was not returned to the Tribunal, nor was there any response from the respondent.

10A teleconference hearing was held on February 22, 2012, to deal with the merits of this matter. The respondent did not join the teleconference.

FACTUAL BACKGROUND

11The facts set out in the Application and deemed to have been accepted by the respondent are set out in the following paragraphs. Where an assertion of fact that does not appear in the Application was made at the teleconference dealing with this matter, it is indicated below. At the teleconference, I heard testimony by the applicant and by her husband, Richard Bourdeau, who witnessed the event that is the subject of the Application.

12The applicant is a person with a disablity, and has a guide dog. At the teleconference she confirmed that she is blind, and prior to the teleconference she provided the Tribunal with a copy of her registration document with the Canadian National Institute for the Blind.

13On June 6, 2010, the applicant was shopping with her husband. She had her guide dog with her. The applicant and her husband, with the guide dog, entered the Kingston Bazar, a grocery store on Bath Road in Kingston, Ontario, at approximately 3 PM. The applicant and her husband were approached by an individual, and were asked to leave the store because the guide dog was “scaring my customers”. The applicant and her husband believe that the individual was a butcher as well as the owner of the store. At the teleconference, Mr. Bourdeau stated that the reason he believed that the individual was a butcher was that he was wearing a white coat and he had seen him serving a customer at a meat and cheese counter. Both the applicant and her husband testified that that the individual had stated that he was the owner of the business when he asked them to leave.

14The applicant’s guide dog is a docile animal who was in harness and working at the time. The Application stated that the dog was at the applicant's side and not mis- behaving in any way. The applicant's husband tried to explain that the applicant and her working dog had a right to be present. The respondent reacted badly to this information, calling the applicant's husband “crazy”. At no time did the individual address his comments to the applicant, “even though I am an adult and capable of speaking for myself”. The applicant and her husband left the store.

15The Application states that the applicant was very disturbed, upset, angry and unsettled. She did not understand how anyone could be fearful of a highly trained guide dog.

Although there was no monetary loss, there is a loss of access to the foods I like. The store specializes in Middle East foods which are the foods I grew up with. In fact to enjoy these foods I had to shop in Ottawa or Toronto. The opening of this grocery store truly excited me, but now to be told that I and my dog are not welcome is very distressing and saddening. I also felt like I was a nonentity, as the person while standing less than a meter away absolutely ignored my existence. He made me feel like an outcast. He acted as if I were not there were totally incapable of addressing him on an equal footing.

16At the teleconference, the applicant added that, in addition to the incident being distressing and disappointing, it was embarrassing to be treated this way.

ANALYSIS AND DECISION

17The relevant provisions of the Code are as follows:

1 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.

10(1) In Part I and in this Part,

“disability” means,

any degree of physical disability… and, without limiting the generality of the foregoing, includes… blindness or visual impediment… or physical reliance on a guide dog or other animal…

46(3)(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

18In this case, there is uncontradicted evidence that the applicant relies on a guide dog because of a disability, and that she was directed to leave a store because of the presence of the guide dog by a person who was apparently the owner of the store. I conclude on these facts that the applicant’s right under section 1 of the Code to equal treatment without discrimination was breached. The evidence deemed to be accepted by the respondent includes a statement by an individual sufficiently closely connected with the respondent that he assumed the authority to direct the applicant to leave the store, and did so on the basis that her guide dog was “scaring my customers”. Further statements by the applicant and her witness Mr. Bourdeau at the hearing indicate that the individual was wearing a white coat, and that he had been serving a customer at the meat and cheese counter prior to approaching the applicant. I am satisfied on this evidence that the respondent is liable for the breach of section 1, because the person who breached the applicant’s right was either an employee or a “directing mind” of the respondent: s. 46.3 of the Code, Wall v. University of Waterloo, (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44).

REMEDY

19Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

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.

20The applicant has requested monetary compensation to address the effect of the respondent’s harassment on her dignity, feelings and self-respect. Section 45.2(1)1 encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.

21Quantifying intangible loss and distress is a difficult exercise. Recent decisions of this Tribunal have noted that both the individual’s reaction to how he or she was treated and objective considerations, such as recognition of the importance of a violation of the Code should be addressed. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; Sanford v. Koop, 2005 HRTO 53; Arunachalam v. Best Buy Canada, 2010 HRTO 1880; and Dixon v. 930187 Ontario, 2010 HRTO 256.

22In this case, I accept on the basis of her evidence that the applicant suffered considerable distress and loss of dignity. The actions of the respondent turned a simple outing with her husband, coupled with the initially enjoyable experience of finding a grocery store close to her home that stocked foods from her country of origin, into a disappointing, discouraging and humiliating experience. While this was a relatively brief encounter, it was a public embarassment and the approach of the person who ejected the applicant from the store was abusive; the applicant was understandably extremely upset. In the circumstances, I consider $15,000 an appropriate compensation for injury to dignity, feelings and self-respect.

23Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the "date the cause of action arose". Based on the evidence, this cause of action arose on June 6, 2010. The Application having been filed in the first quarter of 2010, the applicable pre-judgment interest rate is 0.5%.

24The applicant also requested an order under s. 45.2 (1) 3 that the respondent be required to post a sign at the entrance of the premises, in English, French and any other languages commonly used at the store, making it clear that the presence of service animals is accepted as required by law. I agree that such an order would “promote compliance with this Act”.

Order

25The Tribunal makes the following order:

(a) Within 30 days of this Decision, the respondent shall pay $15,000 to the applicant for violation of her inherent right to be free from discrimination, and for injury to her dignity.

(b) The respondent shall pay the applicant pre-judgment interest at 0.5%.

(c) The respondent 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.

(d) On or before the date that is 30 days after the date of this Decision, the respondent shall post a sign at the entrance to its business premises that indicates, in English, French and any other language used on the business premises, that the presence of service animals such as guide dogs is accepted in its premises as required by law.