McMahon v. U-Haul Co. (Canada) Ltd., 2013 HRTO 11

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel William McMahon Applicant

-and-

U-Haul Co. (Canada) Ltd. Respondent

DECISION

Adjudicator: David A. Wright Date: January 3, 2013 Citation: 2013 HRTO 11 Indexed as: McMahon v. U-Haul Co. (Canada) Ltd.

APPEARANCES

Daniel W. McMahon, Applicant Self-represented

U-Haul Co. (Canada) Ltd., Respondent Michael Kealy, Counsel

Introduction

1The issue in this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) is whether the respondent discriminated against the applicant with respect to services because of disability, contrary to s. 1 of the Code, or committed a reprisal against him contrary to s. 8 of the Code, by refusing to rent him a trailer. The applicant alleges that when he called the respondent to reserve a trailer at the U-Haul location in Windsor, Ontario, he was refused.

2The applicant lives in Naples, Florida. He self-identifies as a person with various disabilities, and notes that he has been diagnosed, among others, with post-traumatic stress disorder, anxiety disorders, and personality disorders (passive aggressive and obsessive compulsive). The applicant alleges that the respondent’s customer service representatives refused to rent him the trailer because of his aggressive behaviour during previous contact with them, which is connected with his disabilities, and is therefore discrimination because of disability. He also alleges that they refused to rent to him because he had filed a disability discrimination complaint in Arizona against the respondent and that this is a reprisal under s. 8 of the Code.

HEARING

3The hearing was held on June 28, 2012, in Windsor, Ontario, and the parties made final arguments by telephone on July 13, 2012. Two witnesses gave evidence: the applicant and Steve Berman, the respondent’s Program Manager, Customer Service and Hotline.

RELEVANT STATUTORY PROVISIONS

4The following provisions of the Code are raised in this Application:

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, gender identity, gender expression, age, marital status, family status or disability.

2. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

3. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

JURISDICTION

5At the hearing stage, the respondent raised various jurisdictional issues. It takes the position that the Code does not apply to this situation, because the applicant was in Florida and the customer service agents taking his request to rent the trailer were in Arizona. It says that the Code does not apply to the interaction between an American and American telephone operators, even where the service being sought is in Ontario. It also says that a reprisal for filing a complaint under American anti-discrimination legislation cannot be a reprisal under s. 8, since it is not a reprisal for instituting proceedings “under this Act”, the Ontario Code. These raise interesting questions of law, but it is not necessary to decide them given my conclusions on the facts. I will proceed on the assumption that the Code applies and that a reprisal for the Arizona complaint could be a violation of s. 8 of the Code.

Factual background

6Prior to attempting to rent the trailer in question, the applicant had been in extensive communication with U-Haul since June of 2010 about his concerns about his treatment by them, including several contacts on September 15. The applicant was referred to a particular representative, Paul Cotton, for whom he was instructed to ask when dealing with these issues. The applicant had also contacted the Better Business Bureau and the Arizona office of the Attorney General about his treatment on at least two occasions. Among other things, the applicant believed U-Haul had discriminated against him and failed to accommodate his disabilities because it refused to continue to deal with him when he became admittedly anxious and loud on the phone during a roadside emergency.

7The applicant was in Florida on September 16, 2010, when he tried to reserve a trailer in Windsor, Ontario. He testified that he first tried to rent the trailer on-line, but was “locked out of the system” after he entered the relevant information, including credit card information.

8The applicant testified that he then telephoned the number for U-Haul Canada, and was told that he had to speak to Mr. Cotton, a manager he had been dealing with regarding his previous complaints, and that U-Haul could not rent to him until he had resolved the issue. The applicant says that he then stated that he was trying to rent a trailer in Canada and did not understand what Mr. Cotton would have to do with this. He testified that the agent then hung up on him. He testified that he called back from two to five times and was hung up on after he said his name.

9The applicant testified that he then went on the U-Haul internet “chat” service and asked if he could rent in Canada with a disability. Transcripts of those chats were filed with the Tribunal and the applicant never made any specific inquiries about renting a trailer.

10The applicant testified that he then located a number for a U-Haul office in Toronto. He spoke to a person named Dana or Dawna, the eastern Ontario reservations manager, and explained his situation. Dana or Dawna said that she would contact him later in the day to see if she could resolve the issue. When she called back there was a person named Mary on the line from the respondent’s headquarters in Arizona. Mary, the applicant testified, explained that the applicant was banned from the reservations system and U-Haul would no longer rent to him because of his past behaviour. The applicant testified, at one point in his testimony, that Mary said the reasons for this were that the applicant had not returned a truck, had filed a complaint against U-Haul in Arizona, and had been rude to U-Haul employees. In cross-examination, he put it differently: he said that Mary had said that his complaints about disability discrimination would be resolved through the Arizona attorney-general’s office and that he was being denied because of his behaviour. The applicant testified that during the call with Mary he was “anxious, stressed, loud, screaming”.

11Mr. Berman explained that there is nothing in the respondent’s reservation system that would block an on-line reservation based on a person’s identity. In other words, even if a person has an “e-alert” that prevents them from renting, this would not affect the person’s ability to make an on-line reservation. Thus, Mr. Berman says, if the applicant could not complete his reservation on-line it was not because of who he was. It appears it was likely a computer issue.

12Similarly, Mr. Berman testified, U-Haul does not have any protocols that prevent a person from making a reservation by phone with an agent. Rather, where there is an “e-alert” the process is, as described below, to permit the person to make a reservation and address the issue when the person attends at the location to rent the equipment.

13U-Haul does have an “e-alert” system, designed to enable it to retain its equipment. An “e-alert” can be created that prevents a transaction from being completed when a person on the system attends to pick up equipment. The reasons for an e-alert include failure to return equipment, delays in picking up materials from storage, throwing waste into the U-Haul dumpsters, an altercation with another customer, mistreatment of agents, a traffic ticket, or overdue equipment. As the customer’s information is entered into the computer at the rental location, a piece of paper is generated that is handed to the customer and that directs the person to call an agent at U-Haul headquarters. The e-alert system is specifically designed to allow someone to make a reservation, presumably since doing so can assist in locating people who owe U-Haul money.

14Mr. Berman testified that there has never been an e-alert entered about the applicant. There, is, however, an e-alert about another Daniel McMahon who lives in a different city in Florida based on a failure to return a van.

15U-Haul has been unable to locate any employees named Dawna, Dana or Mary who may have talked to the applicant on September 16, 2010. Its records do show that two different agents accessed the applicant’s customer service call records a total of four times between 6:15 and 6:30 AM on September 16, 2010.

16In correspondence with the Tribunal in this case, U-Haul’s Assistant General Counsel, Susan R. Hanson, wrote to the Tribunal in relevant part as follows on December 13, 2010:

Mr. McMahon is a resident of Florida and has also used the name Nick Bernat when dealing with the company. Regardless of his name, U-Haul Co. of Florida has had a number of problems with him. Essentially, he has called the company repeatedly and each time goes on a one-sided rant. He does not allow a customer service representative to assist him or respond to him. Mr. McMahon has engaged in additional harassing conduct by calling repeatedly and hanging up when a U-Haul employee answers. He told one employee, Roxi Batten, “I am sorry about the color of your skin.” A copy of the U-Haul customer service notes for Nick Bernat and Daniel McMahon are attached.

Because of Mr. McMahon’s unacceptable conduct and abuse of U-Haul’s employees, U-Haul Co. of Florida has declined to accept his future business. U-Haul Canada has similarly refused his business, based upon his past behaviour.

Although Mr. McMahon claims he has a brain tumor, none of the U-Haul companies have any information about his medical condition apart from what he has volunteered himself in his numerous phone calls. The decision not to accept Mr. McMahon’s patronage was based solely on his ill-treatment of U-Haul employees and not on any medical condition that he may have.

17In a subsequent letter dated March 21, 2011 from Ms. Hanson, U-Haul changed its position and stated that it had not denied the applicant service, noting that it had rented to the applicant in July and October of 2010. At the hearing, the respondent took the position that the letter of December 13, 2010 was an error and that, in fact, U-Haul had never declined to accept the applicant’s future business.

ANALYSIS

18I address first the applicant’s claim based on disability. He states that in allegedly refusing him the trailer rental based on his loud and upset behaviour, the respondent discriminated against him based on disability. Making the link to disability in such a claim, however, requires more than simply a diagnosis of mental health conditions. It is the applicant’s burden of proof to show a connection between a respondent’s alleged actions and a disability, on a balance of probabilities. The applicant has provided no medical evidence that shows that, or how, his behaviour was linked to his disabilities, or that demonstrates that it would have been impossible or difficult for him to control such behaviour. Given the absence of supporting medical evidence linking the behaviour and the disabilities, the applicant has not established disability discrimination on a balance of probabilities.

19The applicant stated that he is not allowed to have access to his psychiatric notes under United States law because they may have a negative effect on the person to whom they relate. However, there is no proof of this and in any event, the key issue here is not the notes but the need for an explanation by a medical professional about the link between the behaviour and disability.

20The applicant also makes various arguments about the respondent’s training of its customer service agents on issues of disability. However, given that he has not established a link to his disability, these issues do not arise in this case.

21I turn next to the applicant’s claim of reprisal. I note that the applicant stated in his reply in final argument that from the evidence he could see that there was not a reprisal. However, for the sake of completeness and because the applicant did not formally withdraw this aspect of his Application, I will address it, assuming without deciding that a reprisal could be based on his claim to the Arizona Attorney-General.

22A claim of reprisal requires that the applicant establish:

a. An action taken against, or threat made to, the [applicant];

b. The alleged action or threat is related to the [applicant] having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

Noble v. York University, 2010 HRTO 878 at para. 33

23The applicant has not established, on a balance of probabilities, these elements of a reprisal claim. There is no record of any decision to deny the applicant a rental on the basis of his claim to the Arizona Attorney-General in the respondent’s computer system, and the agents dealing with him would not have known about the claim, except through the applicant’s statements. Later in his testimony, the applicant made clear that he was told by the agents that U-Haul would resolve his discrimination complaints through the Arizona attorney-general’s office, not that he was denied service because he had made such a claim. In the circumstances, I find that the applicant has not established that U-Haul retaliated against him because of the claim to the Arizona Attorney-General’s office.

ORDER

24The Application is dismissed.