Gibson v. Ridgeview Restaurant Limited, 2013 HRTO 1163

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steve Gibson

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Ridgeview Restaurant Limited o/a Gator Ted’s Tap & Grill and Ted Kindos

Respondents

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General

Intervenor

DECISION

Adjudicator: Brian Eyolfson

Date: July 4, 2013

Citation: 2013 HRTO 1163

Indexed as: Gibson v. Ridgeview Restaurant Limited

APPEARANCES

Steve Gibson, Complainant

Self-represented

Ridgeview Restaurant Limited o/a Gator Ted’s Tap & Grill and Ted Kindos, Respondents

Gary D. Graham, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Attorney General, Intervenor

Zachary Green, Counsel

Introduction

1The complainant, Steve Gibson, filed a Complaint with the Ontario Human Rights Commission (the “Commission”), dated May 25, 2005, alleging that he was subjected to discrimination on the basis of disability in services, contrary to sections 1 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Complaint names Ridgeview Restaurant Limited o/a Gator Ted’s Tap & Grill (the “restaurant”), and Ted Kindos, one of the owners of the restaurant, as respondents.

2In his Complaint, the complainant alleges that he has a medical condition for which he was prescribed medical marijuana, and that he received an authorization to possess medical marijuana (an “ATP”) from Health Canada on June 1, 2004. He alleges that, respecting the request of the individual respondent, Mr. Kindos, he has never smoked marijuana on the respondent restaurant’s premises. He alleges that, on May 18, 2005, he went to the restaurant and purchased a beer. Shortly thereafter, he went to the parking lot to take his medication. He alleges that Mr. Kindos then approached him in a very confrontational manner and told him, among other things, to never come to his restaurant again.

3In their answer to the Complaint, the respondents assert that the complainant frequently consumed marijuana within one to six feet of the entrance to the restaurant, which led to numerous customer complaints. They assert that the complainant was asked on numerous occasions to move into the parking lot, or elsewhere away from the entrance to the restaurant, to consume marijuana, but he refused to comply with the requests. The respondents assert that the complainant was advised that he could no longer return to the restaurant, after he was again consuming marijuana on the sidewalk in front of the restaurant, and within six feet of the restaurant’s entrance.

Procedural background

4By letter dated June 26, 2007, the Commission referred the subject matter of the Complaint to the Tribunal. A mediation was held on September 12, 2007, but the matter was not resolved. The parties then exchanged pleadings, and hearing dates were set for May and June 2008. Those hearing dates were ultimately adjourned, on consent of the parties, as the parties were involved in ongoing settlement discussions.

5On September 16, 2008, the Tribunal sought submissions from the parties on whether or not this matter should be heard together with an Application filed under section 34 of the new Part IV of the Code, and alleging discrimination in relation to the use of medical marijuana, that appeared to raise similar issues of fact and law (Application File No. 2008-00074-I). By Interim Decision dated November 27, 2008, 2008 HRTO 318, the Tribunal declined to order that the two matters be heard together.

6At a pre-hearing conference call in this matter on January 22, 2009, hearing dates were set for June and July 2009. On May 21, 2009, the respondents sought an adjournment of those hearing dates in light of related proceedings that the organizational respondent had commenced in Federal Court. The Commission and the complainant consented to the respondents’ adjournment request, and the hearing dates were adjourned.

7At a pre-hearing conference call on June 8, 2009, new hearing dates were set for October and November 2009; however, the respondents requested a further adjournment pending the result of the Federal Court matter which was scheduled to be heard on November 2, 2009. On consent of the other parties, the October 2009 hearing dates were adjourned.

8In correspondence dated October 1, 2009, the respondents submitted that, insofar as some of the central issues in this matter are also in play in Application File No. 2008-00074-I, it would make sense to await the Tribunal’s determination in that matter, which had commenced being heard, before proceeding with this matter. In correspondence dated October 5, 2009, the Commission also submitted that it would be an efficient use of the Tribunal’s resources to have a decision in Application File No. 2008-00074-I before proceeding to hear evidence in other cases raising similar issues.

9After hearing submissions from the parties on a conference call on November 4, 2009, the remaining hearing dates were adjourned, pending the Tribunal’s Decision in Application File No. 2008-00074-I. That Decision was issued on September 19, 2011. See Ivancicevic v. Ontario (Consumer Services), 2011 HRTO 1714.

10By letter dated October 6, 2011, the Commission indicated that, in light of the Decision in Ivancicevic, the Commission would not proceed with the Complaint, but that the complainant wished to proceed. By Interim Decision dated October 20, 2011, 2011 HRTO 1897, the Tribunal confirmed that the Complaint would continue to be processed, without the participation of the Commission.

11On a conference call on November 30, 2011, the respondents indicated that they may wish to amend their pleadings. The Tribunal set a schedule for the respondents to provide proposed amended and/or additional pleadings, if they wished to do so, and for the parties to exchange submissions with respect to the filing of any amended and/or additional pleadings.

12On December 22, 2011, the Tribunal received a Request for an Order During Proceedings (“Request”) from the respondents, seeking to amend their pleadings, and attaching amended pleadings. On January 7, 2012, the Tribunal received submissions from the complainant in response to the respondents’ materials. By Interim Decision dated March 22, 2012, 2012 HRTO 595, the Tribunal granted the respondents’ Request, and the complainant was provided with an opportunity to file a reply to the respondents’ amended pleadings.

13On a conference call on April 13, 2013, hearing dates were set, and the Attorney General of Ontario’s Request to Intervene was granted. The Attorney General of Ontario requested intervention to make submissions on section 45(2) of Regulation 719 under the Liquor Licence Act, R.S.O. 1990, c. L.19, should any determination or relief in relation to that provision be sought.

WITNESSES

14The complainant and the individual respondent, Ted Kindos, gave evidence at the hearing. In addition, Mary-Ann Fenton and Michelle Edmondson, who are Mr. Kindos’ sisters and work at the restaurant, and John Head, a restaurant patron, were called as witness by the respondents.

ANALYSIS AND DECISION

Assessment of credibility

15To the extent that issues addressed in this Decision turn on my assessment of the credibility of the parties and the witnesses, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

16I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and, observations as to the manner in which the witnesses gave their evidence.

Does the complainant have a disability within the meaning of the Code?

17The complainant testified that he has a severe spinal cord injury “in the upper extremity” that limits his neck movement “visibly.” He testified that he was prescribed medical marijuana by his specialist, and received an ATP from Health Canada on June 1, 2004. The Commission’s pleadings, on which the complainant relies, assert that the complainant’s specialist prescribed him marijuana in order to deal with the symptoms of his injury.

18The respondents do not appear to dispute that the complainant has a disability within the meaning of the Code. “Disability” is defined in s. 10 of the Code, in part, as “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…” In the circumstances, I find that the complainant’s medical condition constitutes a disability within the meaning of the Code.

Was the complainant subjected to discrimination on the basis of disability, contrary to the Code?

Background

19Ted Kindos testified that he and his mother own the respondent restaurant. He started in the restaurant business in 1979, as a dishwasher through high school, and helped his parents on the weekends when he was going to college. He began full-time when they lost their father in 1991. He explained that the restaurant has operated as “Gator Ted’s” since 1994, when their lease was about to “double” and they figured they needed a more up-to-date concept and came up with a sports concept.

20The complainant testified that he moved to his residence 12 years ago, and has been a regular patron of the respondent restaurant since then.

The complainant’s ATP

The complainant, Mary-Ann Fenton and Ted Kindos

21The complainant testified that he showed his ATP to Mr. Kindos in June 2004. Mr. Kindos, on the other hand, testified that he never actually saw the complainant’s ATP. In any event, as I understand the complainant’s evidence, he asked Mr. Kindos if he could smoke marijuana in the bar area of the restaurant where cigarette smoking was permitted at the time, and Mr. Kindos requested that the complainant not smoke marijuana in his establishment, and said that he was making it a company policy that it was not allowed.

22The complainant testified that, respecting Mr. Kindos’ request, he has never smoked in his establishment. He goes outside to take his medication where he is not breaking any laws or bylaws.

23The complainant agreed that he showed Mary-Ann Fenton his ATP, and that he might have said to her that he believed that the ATP gave him the ability to smoke marijuana wherever tobacco could be smoked. He testified that Ms. Fenton went back to her office, and came out and said that she called the phone number on the back of his ATP, but he does not know if she did call the number. He testified that he told Ms. Fenton that it is only an answering service, as he has called the number many times and you do not get through to Health Canada by calling their answering service. They have to call you back. He testified that he explained that to Ms. Fenton when he gave her the number but she came back and said, “You can’t do that. They just told me you can’t.” The complainant clarified that Ms. Fenton said, “I asked if you could. They said ‘No’. They asked me where you live. I said, ‘Ontario, Canada’. And the guy said… ‘Absolutely not’.” The complainant clarified further that, according to what Ms. Fenton said to him, the individual on the phone said “absolutely not” to the question of whether or not he could smoke marijuana in public. The complainant confirmed that he then said, “Bullshit,” because he did not believe Ms. Fenton. He also later clarified that when you call the number on the back of his ATP you do get a “live person”, but they take a message and someone calls back.

24Mary-Ann Fenton testified that she has worked at the restaurant since 1983, and that the complainant and his family have been patrons for quite some time. She explained that in 1994 they converted the front area of the restaurant into a little sports bar, and the complainant would come in with his co-workers. That was really how she started to know the complainant.

25Ms. Fenton testified that the complainant was in the restaurant one afternoon and had received his ATP. He showed it to her, and told her that neither she nor anyone else could tell him where he could smoke his marijuana. She testified that she was concerned about the legal aspect for herself, 42 employees, her family and the business, and that this was illegal.

26Ms. Fenton was shown a document dated January 2004, and called “Burlington: Alcohol Responsibly Served”, or “BARS”, from the Halton Regional Police Service. She testified that the document is part of one of many different “trainings” that they do with their staff. Ms. Fenton was referred to the following section of the document under the heading “Further common Infractions of the Liquor Licence Act and Regulations:”

O. Reg 719/90 L.L.A. Sec 45(2) – Licence Holder Permit narcotic on Premise.

Would include any substance outlined in the Controlled Drugs and Substances Act including marihuana, Cocaine, Etc.

Example: If the smell of marihuana smoke is strong enough so it would seem unlikely there would be an ability of the licence holder to deny the knowing it was being consumed, then a charge could be laid.

27Ms. Fenton confirmed that she received the above training from the local police. Mr. Kindos also testified that he and his staff received training from the local police in January 2004. He referred to the BARS document and the reference to Regulation 719/90 under the Liquor Licence Act, and the example, set out above. He testified that, reading that paragraph, what “stood out” was that they could lose their liquor licence for the smell of marijuana.

28Ms. Fenton testified that the above training from the local police was the main reason why she made the call to the number on the back of the complainant’s ATP. She explained that the complainant gave her his ATP, and she looked at it and noticed a phone number on the back. She testified that she said to the complainant, “I will call that number.” He said, “Good luck, because you won’t get anybody on the line.” She went into the “back” and used the phone. She was on hold for 40 to 45 minutes. It was a Monday and she was the only bartender on that day. There were two guys working in the kitchen who stayed on hold for her. Ms. Fenton testified that she had to speak to somebody because she had no knowledge as to what the responsibility of the ATP holder was, and herself for the business and everyone else. She referred to putting everyone else at risk, so it was important that she came up with an answer.

29Ms. Fenton testified that, eventually, she did speak to someone. The conversation was very short. She testified that she explained that she is a server in a licenced establishment and, “I have a patron here that has a medicinal marijuana card”, and, “Am I able to serve them alcohol if they have this card?” The person on the receiving end asked her, “Which province are you calling from?” She clarified, “Ontario.” The person on the receiving end said, “Absolutely not.” She testified that was it. She went back to the complainant, gave him his card and said, “Absolutely not.” Ms. Fenton was asked, “Absolutely not what?” She first testified that she could not serve the complainant in a licenced establishment, then testified that he could not smoke his marijuana in their establishment and that was clarified.

30The complainant agreed that he also showed his ATP to others in the restaurant, and that he believed he could smoke marijuana anywhere where tobacco was being smoked in the restaurant, and that his ATP authorized him to do that. He testified that, from the “paperwork” he read, there were no restrictions.

31On the other hand, the complainant denied that he believed he should be able to smoke marijuana on the patio where others smoke tobacco, and testified that he went outside to smoke it. He testified that the respondents disliked it, so he went outside, but then they had a hard time with that.

32The complainant testified that he now knows that it is unlawful to smoke marijuana in a licenced establishment, but he disagrees with that. He feels that if one is out on a patio smoking carcinogenic cigarettes, and he wants to take his medication to relieve his pain, he does not think that he should have to stay at home and the person smoking cigarettes gets to go out.

33When asked why he would not simply go for a short walk outside the restaurant area, he testified that he did. He also testified that, the “first time”, he was told by Mr. Kindos, “Not in the parking lot.”

John Head

34John Head testified that he is a patron of the respondent restaurant, and that he met the complainant many times at the bar. He testified that he was at the restaurant the day the complainant received his ATP, and the complainant showed it to him.

35Mr. Head testified that he is a trucker, but that he has a specialty and is held to a higher standard than a normal day driver due to the nature of the commodities he transports. He also drives in the United States and has been issued an “L1 specialized knowledge work visa.” He does annual drug testing and is subject to random drug testing at any time, anywhere, whether he is on or off duty. He testified that cannabis is one of the things he is tested for and it is his understanding that if he inhaled second-hand marijuana smoke it would be detected. He testified that the consequence of a positive test would be unemployment, and he would not be able to be re-employed doing the same work.

36Mr. Head was asked if he has ever been left with no option but to walk through the complainant’s marijuana smoke to enter or exit the restaurant. He testified that, exiting once, he walked through it. He testified that he had a conversation with the complainant, certainly on one occasion and possibly more, about the requirements of his job and that he not be anywhere near marijuana, including second-hand smoke. The complainant, on the other hand, testified that he did not think that he discussed with Mr. Head concerns that Mr. Head had about exposure to second-hand marijuana smoke.

37Mr. Head confirmed that the complainant talked to him about “enjoying freaking people out.” He testified that it was in a casual conversation and discussion of the complainant’s basic impunity that he perceived with being able to smoke wherever he wanted. He testified that the complainant mentioned to him that he liked to go and smoke over by the Food Basics and freak out the young mothers with kids.

38Mr. Head also confirmed that he witnessed conversations or encounters between Mr. Kindos and the complainant, concerning the complainant’s use of marijuana. He testified that there were a couple of conversations or encounters where Mr. Kindos was discussing with the complainant his smoking in front of the restaurant in close proximity to the entrance, that it was not conducive to good business, and that he should not smoke there. He also testified that Mr. Kindos said perhaps the complainant should go out to his car, or take a walk around the mall, or go somewhere else, in a very conversational and reasonable tone, and that Mr. Kindos said, “Please don’t smoke in front of my restaurant.” Mr. Head confirmed that the complainant chose to smoke directly near the door after that.

Michelle Edmondson

39Michelle Edmondson testified that she is associated with the respondent restaurant as it is her family, and she has worked there for 30 years. She testified that the restaurant is all she has known, and it is her living, her environment, her life and her job.

40Ms. Edmondson testified, among other things, that she discussed with the complainant his views about what he could and could not do around the restaurant. She testified that the complainant pretty much came out and told her that, “With this card, I can go stand out front of your brother’s restaurant and light up a joint and it will… piss him off so much that he will kick me off his property…”

41Ms. Edmondson also testified that the complainant said, “I can smoke anywhere I like. I could smoke out front of you brother’s establishment, get him all worked up and upset and he will bar me or kick me out of the establishment.” She testified that the complainant said pretty much something in that sense. She added that the complainant said that he could get Mr. Kindos so worked up that Mr. Kindos would kick him off the property and that he could turn around and, “There will be a lawsuit against Ted”, because he will be kicked off the property and he can legally smoke this wherever he thinks he can. Ms. Edmondson testified that she remembered that very clearly because it upset her, thinking, “Well, you can’t just come smoke it out front of the door, because…” She testified that, at the time, she just assumed that it was the same as smoking bylaws, so she was not sure. Lastly, she testified that the complainant said it in the sense of, he could not wait to come and smoke out front and, “With this card, there’s nothing anybody can do to me.”

42The complainant denied that he goaded Mr. Kindos into banning him from the restaurant, and the respondents do not appear to have asserted that he did prior to the hearing. In any event, I do not find Ms. Edmondson’s evidence to be of assistance in determining whether or not the complainant was subjected to discrimination within the meaning of the Code. Her evidence may have been relevant to the issue of remedy, had I found that the complainant was subjected to discrimination, but, as set out below, I have not found that he was.

Findings

43To begin with, as set out above, in his handwritten Complaint dated May 25, 2005, the complainant alleged that, in June 2004, he showed his ATP to Mr. Kindos and asked him if it was okay to take his medication in the smoking area of the bar. He also informed Mr. Kindos that Mr. Kindos had the right to request that he not take his medication in his establishment. He alleges that Mr. Kindos replied that he was making it a company policy that it is not allowed. He alleges that, respecting Mr. Kindos’ request, he has never smoked on his premises, and he went outside where he was not breaking any laws or bylaws.

44The Commission’s pleadings, dated November 2, 2007, also state that the complainant always went outside to take his medication while at the restaurant. Upon arriving at the restaurant, he typically smoked marijuana while walking from his vehicle after he parked it in the parking lot adjacent to the plaza and he would put out his marijuana as he was walking to the front door of the restaurant. After arriving at the restaurant, he would occasionally leave the restaurant to smoke marijuana, usually along the sidewalk in front of the plaza. The Commission’s pleadings state that the complaint smoked marijuana at least every two hours and, on a typical visit to the restaurant, he would leave the restaurant two or three times to take his medication.

45I note that the respondents’ initial answer to the Complaint, filed prior to the Complaint being referred to the Tribunal, states that the complainant was advised that he would not be permitted to consume marijuana in the restaurant, and that he regularly consumed marijuana outside of the premises (i.e. in the parking lot of the strip mall) without incident and/or without complaint from the respondents. More particularly, they assert that, from the fall of 2004 to May 2005, the complainant would generally consume marijuana in the parking lot, and at no time during this period did they object to the complainant’s consumption of marijuana (i.e. when he smoked it in the parking lot).

46I have carefully considered the evidence of the complainant, Mr. Kindos and Ms. Fenton, which was given at the hearing a little more than approximately seven or eight years after the incidents in question. I have also considered their evidence in light of their much earlier, detailed pleadings. I find that when the complainant received his ATP, he informed the respondents and was advised by the respondents that he could not smoke marijuana inside of the restaurant. I also find that, although the complainant may have been of the view at the time that his ATP permitted him to smoke marijuana in areas where tobacco smoking was permitted, he nevertheless did not have an issue with the respondents’ requirement that he not smoke marijuana inside of the restaurant. It also appears undisputed that the complainant regularly went outside of the restaurant to smoke marijuana, without incident or complaint.

47In the circumstances, I also do not accept the complainant’s assertion, made for the first time at the hearing, that Mr. Kindos first told him not to smoke marijuana in the parking lot. This was not mentioned in the complainant’s Complaint, nor was it mentioned in any of the Commission’s subsequent pleadings upon which the complainant relies, including the Commission’s pleadings in reply to the respondents’ pleadings wherein the respondents essentially asserted that they had no issue with the complainant smoking marijuana in the parking lot.

48As I understand the complainant’s position throughout these proceedings, he has not argued that he should have been, or should be, permitted to smoke marijuana inside the restaurant. He also testified that he now knows that it is unlawful to smoke marijuana in a licensed establishment, although he disagrees with that. Indeed, with respect to licenced establishments in Ontario, section 45(2) of Regulation 719, Licences to Sell Liquor, R.R.O. 1990, under the Liquor Licence Act, does not permit the smoking of marijuana “on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.” I also note that, at the hearing, the complainant denied that he believed that he should be able to smoke marijuana on the patio where tobacco smoking is permitted.

49Rather, the complainant appears to allege that he was subjected to discrimination on occasions when he went outside to smoke marijuana, and the respondents took issue with him smoking marijuana, even though he was not on the respondents’ licensed premises. I note that in Reply pleadings dated December 19, 2007, the Commission asserts that the complainant did not smoke marijuana standing within one to six feet of the entrance to the restaurant for periods of time, or while standing in the restaurant doorway.

50The respondents, on the other hand, assert that the complainant was refused services due to his frequent and repeated consumption of marijuana within one to six feet of the restaurant’s entrance, and on the licensed patio of the restaurant. At the hearing, the respondents also argued that the complainant had “three strikes”, referring to the following three incidents on which I heard evidence at the hearing: the bus trip incident, the late-April 2005 incident; and, the last incident in May 2005.

The bus trip incident

51In their original answer to the Complaint, the respondents assert that they arranged a family bus trip to a sporting event that included not only patrons of the bar but their families as well. The respondents assert that they received several complaints subsequent to the trip that the complainant had been smoking marijuana either in front of the bus or by the front door of the bus, and, on at least one occasion, had entered the bus with a joint in his hand.

52The respondents’ subsequent pleadings dated December 12, 2007, also refer to a bus trip organized by the respondents and assert that Mr. Kindos received several complaints concerning the complainant smoking marijuana by the front door of the bus where children were located. On at least on occasion, he entered the bus with a joint in his hand.

53The Commission, in its Reply pleadings, asserts that the complainant did not smoke marijuana by the front door of the bus and around children, nor did he enter the bus with a joint in his hand.

The complainant

54At the hearing, the complainant testified that Ms. Fenton accused him of selling marijuana to her clients on a bus trip to a sporting event, which was not true. I note, however, that this allegation does not appear anywhere in the parties’ materials and appears to have been raised for the first time by the complainant at the hearing, approximately seven to eight years after the incidents in question.

55The complainant also testified that Ms. Fenton said something about smoking on the bus, and he informed her that no one smoked a cigarette or a joint on the bus. He also denied smoking on the steps of the bus. When questioning Ms. Fenton, the complainant put to her that she asked him, “What is going on?” and he said, “I don’t know”, and she replied, “You were smoking pot on the bus yesterday night.” He also put to her that he told her, “not even a cigarette was smoked on that bus”, and she said, “I want you out of here. Don’t come back.” Ms. Fenton did not disagree with any of these statements.

Mary-Ann Fenton

56Ms. Fenton testified that the complainant participated in a bus trip to a sporting event on a Sunday in 2005. At the time, Ms. Fenton was on a family vacation. The following day, she was at work early in the morning. She testified that an irate mother came in, first thing Monday morning prior to the doors being opened, and was absolutely disgusted and appalled. As I understand Ms. Fenton’s evidence, she was told by this individual that the complainant was smoking his “pot” and exposing her boys to the second-hand smoke. She told the individual that she would look into it.

57Ms. Fenton testified that, prior to the restaurant’s doors being opened, another irate mother approached her. She testified that the woman was irate and upset so she had to make a call and decided, “Enough.” She testified that, whether it is an event held on or off the premises, it is still representing their family business.

58Ms. Fenton also testified that, after she received the two complaints from the irate mothers that came in that morning, she called one their two employees who ran the trip and asked what happened. Ms. Fenton testified that “[h]er two sons were exposed to it”, but it is not entirely clear if she meant the employee’s sons or the sons of one of the mothers who complained, or in what way they were exposed to it.

59Ms. Fenton testified that the complainant frequented the restaurant around the lunch hour, and was pretty consistent with the times that he would come in. When she saw the complainant pull into the parking lot, she proceeded to greet him at the front door, inside the restaurant, in the hallway. She asked him, “What happened on the bus trip?” She testified that she said to him, “We are not known for that. This was a family trip. You are representing us. You are representing our business. And you are no longer welcome at Gator Ted’s.”

60Ms. Fenton testified that the complainant got in his car and went to visit Mr. Kindos at their other restaurant location. She testified that, within half an hour, she received a call from her bother, Mr. Kindos, who had just met with the complainant. She testified that Mr. Kindos said, “He promises he is not going to smoke it anywhere near the bar. He promises. Just give him another chance.” Ms. Fenton testified that, it being Mr. Kindos’ business, and he being her boss, she had to respect that decision.

61Ms. Fenton also testified that there were other complaints about the complainant on the bus trip from males, females, mothers and fathers. She testified that they could not believe that the complainant would have the disrespect to expose, not only them, but their children. She testified that the complainant had apparently been smoking on the steps of the school bus and was asked by a parent to remove himself and he went on the other side of the school bus door.

Mr. Kindos

62Mr. Kindos confirmed that he learned about issues that arose on a bus trip to a sports event. He testified that he talked to his sister after the complainant had gone to see him at their other location, begging him to let him back in. He also talked to customers on Tuesday and Wednesday when he was back at the other location, and the whole week that he was there, to touch base on what was on the bus and what the conduct was. He testified that they all said the same thing and that they all said that the complainant was lighting up in front of his own kids. He testified that he forgot the names of those who could say that their own kids saw it and they were all looking at the complainant. He agreed that he knew that adults and young children were exposed to second-hand marijuana smoke.

63Mr. Kindos confirmed that his sister banned the complainant from the restaurant, and the complainant came to see him and said, “I swear to God, Ted. I swear to God, I didn’t smoke any joints in front of anybody. I swear to God.” Mr. Kindos testified that those were the complainant’s words, and queried how 20 other people could “lie” the next couple of days and say something completely opposite.

64Mr. Kindos testified that he kind of took the complainant’s word for it. He testified that he did not get all the details, and thought that the complainant was nice enough to come up and seem him, so obviously, the complainant was concerned. He agreed that he was willing to give the complainant another chance.

Findings

65Clearly, Mr. Kindos and Ms. Fenton were not present on the bus trip and their evidence as it relates to what happened on the bus trip is hearsay. The complainant also denied smoking on the bus. He testified that he was at the back of the bus smoking a cigarette, which he put out halfway as the bus was getting ready to go. He testified that he put the cigarette in his hand and walked on to the bus. In any event, I have no reason to doubt the evidence of Ms. Fenton and Mr. Kindos that they received complaints from individuals who attended the bus trip concerning the complainant smoking marijuana in the vicinity of others. Based on the evidence, I accept that the respondents may very well have understood from the complaints they received that the complainant exposed others to second-hand marijuana smoke; however, I make no findings as to what actually happened on the bus trip.

The late-April 2005 incident

Mr. Kindos

66Mr. Kindos was referred to a photograph of the front of the restaurant. He explained that there is a patio across the front of the restaurant that is approximately five to six feet in width and surrounded by a fence. On the outside of the fence, there is 36 or 42 inches of sidewalk for wheelchair access. The restaurant is located in a plaza and there are 18 tenants in the plaza.

67Mr. Kindos was referred to a copy of the restaurant’s lease. He confirmed that the lease requires that the tenant comply with all provisions of law, including all requirements of all federal and provincial legislation. The lease also requires that the tenant not commit or suffer or permit to be committed any nuisance or other thing which may disturb the quiet enjoyment of any other tenant in the shopping centre, or which may unreasonably disturb, interfere with or annoy any person within 500 feet of the boundaries of the shopping centre.

68Mr. Kindos essentially explained that the largest asset his restaurant has is “goodwill”, and that it is the goodwill that is the success to their restaurant. He also testified that the restaurant’s liquor licence means everything to his business. It is 50% of their sales. He referred to having weekly inspections from the Alcohol and Gaming Commission of Ontario (the “AGCO”), and never having a liquor infraction.

69Mr. Kindos testified that on a spring day in 2005, he went to the bank just before lunch. He testified that he was walking down the steps outside Shoppers Drug Mart and he could see the complainant in his patio, leaning up against the wall, smoking a joint. He clarified that the complaint was not at the front, but was in the patio, where his liquor licence applies. Mr. Kindos testified that he said to the complainant, “The bottom line is you can’t smoke on the patio. You can’t be on the licensed premise. I could lose my liquor licence right now if an AGCO guy shows up. You have got to leave. Not anywhere near the licensed premise.”

70Mr. Kindos thought that the complainant accepted what he said. He testified that the complainant kind of walked away and walked to his car. He did not even want to look at him when he came back in. He testified that there was a little bit of a cool-down period and they both went about their business.

The complainant

71The complainant testified, as set out in his Complaint, that in late April 2005 he was in the parking lot of the strip plaza where the respondent restaurant is located. He was taking his medication when Mr. Kindos came out of one of the “other doors”, saw him and said, “Hey, Steve.” Then he said, “Is that what I think it is?” The complainant replied, “Yes.” Mr. Kindos then said, “Put that fucking thing out and go home to fucking do that shit.” The complainant replied, “A cop can’t tell me to put this out, so don’t let it bother you.” The complainant testified that the conversation then ended. The complainant denied that he smoked marijuana within the fenced-in area of the restaurant’s patio.

Findings

72In their original answer to the Complaint, the respondents deny that the complainant was smoking marijuana in the parking lot. Rather, they assert that, on this occasion, the complainant was smoking marijuana on the sidewalk immediately outside, and within six feet, of the restaurant’s entrance. Similarly, in their pleadings dated December 12, 2007, the respondents assert that the complainant was smoking marijuana on the sidewalk immediately outside of the restaurant entrance. In their amended pleadings filed December 22, 2011, the respondents again stated that the complainant was smoking marijuana within six feet of the entrance of the restaurant, and added that the complainant was at one point doing so while leaning against the fence of the restaurant’s licensed patio area.

73Having regard to the respondents’ pleadings, I have some difficulty with Mr. Kindos’ evidence at the hearing that, on this occasion, the complainant was smoking marijuana “in” the restaurant’s patio area. While the respondents added in their amended pleadings that the complainant was, at one point, leaning against the fence of the patio area, prior to Mr. Kindos’ evidence at the hearing it was never alleged that the complainant was actually in the patio area while smoking marijuana.

74On the other hand, I also have difficulty with the complainant’s evidence that he was in the parking lot when he was confronted by Mr. Kindos in late April 2005. As set out above, it appears undisputed that the complainant regularly smoked marijuana outside of the restaurant, without incident. The respondents, throughout their pleadings, essentially asserted that they had no issue with the complainant smoking marijuana in the parking lot, and the complainant and/or the Commission did not dispute this assertion of the respondents. The Commission’s pleadings also state that the complainant typically smoked marijuana while walking from his vehicle after he parked it in the parking lot adjacent to the plaza.

75In the circumstances, while I do not accept that the complainant was actually standing inside the fenced patio area, I also do not accept that he was in the parking lot when he was confronted by Mr. Kindos while smoking marijuana. I find it unlikely that Mr. Kindos would confront the complainant for smoking marijuana in the parking lot, when it appears undisputed that the complainant did so on many occasions over several months without incident. The photograph of the front of the restaurant provided by the respondents shows that the fence surrounding the patio at the front of the restaurant ends, at one end, quite near the entrance to the restaurant. In my view, it is more likely than not that the complainant was smoking marijuana in the vicinity of the restaurant’s entrance when he was confronted by Mr. Kindos on this occasion, as originally plead. The complainant may also have been near the patio fence. However, I do not accept that the complainant was actually standing in the patio area.

The last incident

The complainant

76The complainant was asked if the last time he was at the restaurant was when he and Mr. Kindos had an argument after he had opened the door for some people who were leaving and some people who were coming in, while he was “smoking up.” He did not think that that was the last time that he was at the restaurant, but the complainant agreed that a gentleman was coming out of the restaurant in a wheelchair and he opened the door for him. The complainant did not deny that he opened the restaurant door for someone while smoking marijuana.

77With respect to the last time that he was at the restaurant, the complainant testified that he walked up to the front restaurant door, then clarified that, actually, he walked out of the front restaurant door and two ladies came out of the restaurant and went into the parking lot. He testified that he saw them both get on their “cells.” He testified that Mr. Kindos then came “flying out of the back of the restaurant, straight out the two front doors, madder than all hell,” telling the complainant, “Go home. Don’t smoke that around here.”

Mr. Kindos

78Mr. Kindos testified that on a Tuesday afternoon he met his wife at the restaurant around 5:30, and it was shift change. He gave his bartender the keys to the back to go get her till. He testified that he came through the restaurant area into the bar area and greeted his Molson representative as he was coming in. He testified that, as he was shaking his hand, he was looking behind his Molson representative’s shoulder, and he saw a puff of smoke outside the front door. He testified that he saw the complainant with a joint hanging out of his mouth. He testified that he thought, “Oh, my God. All I need now is a liquor inspector. I’m done.”

79Mr. Kindos testified that he went out and said to the complainant, “Steve, enough. Enough. You just don’t fucking get it. Enough.” He also said, “That’s it. You are out of here. You are no longer welcome back. You are done.” Mr. Kindos testified that he went inside the restaurant and the complaint had said something about going to get his “coolie cup”, which Mr. Kindos described as a “sleeve” that would go over his beer. Mr. Kindos testified that he took the beer can out, crunched it on the bar, and was going to go outside to hand the complainant his coolie cup, but the complainant was right behind him. Mr. Kindos testified that he just threw him his coolie cup and more or less said, “Have a good life.” To Mr. Kindos’ knowledge, the complainant has never returned to the restaurant. He believed this happened in or around May 2005.

Findings

80The complainant alleges in his Complaint that the last incident he had with Mr. Kindos occurred on May 18, 2005, when he went to the “parking lot” to take his medication. However, having carefully considered the evidence, I find that, at some point at least, the complainant was smoking marijuana in close proximity to the restaurant’s entrance, and not in the parking lot as he alleges.

81To begin with, I prefer the evidence of Mr. Kindos over that of the complainant as to what happened the last time the complainant was at the restaurant. The complainant appeared to be somewhat unsure in his evidence as to what transpired on his last visit to the restaurant. His evidence was also very brief. Mr. Kindos’ evidence, on the other hand, was much more detailed, and his evidence as to what transpired and what he actually said to the complainant on that day is quite consistent with what is set out in both the Complaint and the Commission’s pleadings.

82With respect to the complainant’s last visit to the restaurant, I also note that the Commission’s pleadings dated November 2, 2007, state that: the complainant went outside to take his medication and was leaning against a fence by the restaurant’s patio; he noticed a person in a wheelchair through the front door and opened it for him; he then returned to the fence; about a minute later, two ladies came out of the restaurant and walked along the sidewalk and by the complainant; and, within a minute later, Mr. Kindos came out of the restaurant and essentially confronted him. The complainant, in his evidence, described the above situation set out in the Commission’s pleadings as two separate incidents.

83In the circumstances, I find that the complainant was smoking marijuana in close proximity to the restaurant’s entrance. The complainant testified that he opened the door for someone coming out of the restaurant in a wheelchair, and he did not deny that he was smoking marijuana at the time, or that he was smoking marijuana in close proximity to the entrance. The Commission’s pleadings also state that he was taking his medication when he opened the door for a person in a wheelchair.

84I also note that the respondents state in their pleadings that the complainant was consuming marijuana on the sidewalk in front of the restaurant, within six feet of the restaurant’s entrance, and that he was at one point consuming marijuana while leaning against a fence of the restaurant’s licensed patio area. The Commission’s pleadings also state that the complainant was leaning against a fence by the restaurant’s patio. The photograph of the front of the restaurant, provided by the respondents, shows that the patio fence comes quite close to the entrance to the restaurant. In order for the complainant to notice someone in a wheelchair through the front door of the restaurant, while leaning against the patio fence, it seems quite reasonable that the complainant would have been near the fence in the vicinity of the restaurant’s entrance.

85In all of the circumstances, I accept the evidence of Mr. Kindos that the complainant was smoking marijuana in close proximity to the restaurant’s entrance. I also accept that Mr. Kindos told the complainant that he was no longer welcome back to the restaurant because he was smoking marijuana in close proximity to the restaurant’s entrance, and that the complainant had previously been asked not to.

86The respondents assert that Mr. Kindos asked the complainant to move away from the doorway of the restaurant to consume marijuana, but that the complainant repeatedly refused to comply with Mr. Kindos’ request. I note that I have found, as set out above, that it is more likely than not that the complainant was smoking marijuana in the vicinity of the restaurant’s entrance when he was earlier confronted by Mr. Kindos in late April 2005. However, Mr. Kindos did not actually give any evidence that he specifically told the complainant to move away from the doorway of the restaurant to consume marijuana, prior to advising the complainant that he could not return to the restaurant. He did testify that during the last incident when he confronted the complainant, he said to the complainant that the complainant did not “get it”, which is consistent with what is set out in the Complaint and the Commission’s pleadings.

87Mr. Head testified that there were a couple of conversations or encounters where Mr. Kindos was discussing with the complainant his smoking in front of the restaurant in close proximity to the entrance, that it was not conducive to good business, and that he should not smoke there. Mr. Head also testified that Mr. Kindos said to the complainant, “Please don’t smoke in front of my restaurant”, but that the complainant chose to smoke directly near the door after that. Mr. Head testified that, on one occasion, he walked through the complainant’s marijuana smoke while exiting the restaurant.

88I appreciate that Mr. Head is a patron of the respondent restaurant who understands that inhaling second-hand marijuana smoke could be detrimental to his career, but I have no reason to believe that his evidence was untrue. In the circumstances, I accept that the complainant was told by Mr. Kindos to not smoke marijuana in close proximity to the restaurant’s entrance, prior to being asked not to return to the restaurant in May 2005.

89In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 74, the Court of Appeal held that the test for establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage.

90In the present case, I have found that the complainant was ultimately asked not to return to the restaurant as a result of smoking marijuana in close proximity to the restaurant’s entrance, after being told not to.

91According to the Complaint, the complainant informed Mr. Kindos that he had the right to request that the complainant not take his medication in the restaurant, and, respecting Mr. Kindos’ request, he never smoked on the premises, and went outside where he was not breaking any laws or bylaws. It also appears undisputed that the complainant regularly smoked marijuana outside of the restaurant, without incident. However, the complainant alleges that he was subjected to discrimination when he went outside the respondent restaurant to smoke marijuana, and the respondents took issue with him smoking marijuana, even though he was not on the respondents’ licensed premises.

92Prior to the hearing, the complainant essentially denied that he smoked marijuana in close proximity to the restaurant’s entrance. I note that the Commission’s pleadings, on which the complainant relies, assert that the complainant did not smoke marijuana standing within one to six feet of the entrance to the restaurant for periods of time, or while standing in the restaurant doorway.

93In my view, the complainant has not established that he has any disability-related need to smoke marijuana in close proximity to the restaurant’s entrance, or that the respondents’ requirement that he not do so created any disadvantage for him in relation to disability. The complainant simply did not argue, nor did he present any evidence, that he was disadvantaged in any way by the respondents’ requirement that he not smoke marijuana in close proximity to the restaurant’s entrance. Rather, he denied that he did so. However, I have found that the complainant did smoke marijuana in close proximity to the restaurant’s entrance, after being asked not to do so, and that this is why he was ultimately asked not to return to the restaurant. In the particular circumstances of this case, I am not satisfied that the complainant has established a prima facie case of discrimination within the meaning of the Code. I find that the complainant has not established that he was disadvantaged in any way related to disability by the respondents’ requirement that he not smoke marijuana in close proximity to the restaurant’s entrance.

94I also do not understand the complainant to have argued at the hearing that he was subjected to discrimination by the respondents when he was not permitted to smoke marijuana inside of the restaurant, or on the restaurant’s licenced patio. The complainant did not submit, nor did he present any evidence, that he was disadvantaged in any way by the respondents’ requirement that he not smoke marijuana in the respondents’ licenced areas. He also acknowledged at the hearing that it is unlawful to smoke marijuana in a licenced establishment, and he denied that he believed that he should be able to smoke marijuana on the patio where others smoke tobacco. I note, however, that the Commission’s pleadings sought a remedy that the complainant be permitted to smoke marijuana at any and all locations in and about the restaurant where tobacco smoking is permitted.

95Had the complainant argued and established that he was disadvantaged in relation to disability by the respondents’ requirement that he not smoke marijuana in the respondents’ licenced areas, I would have nevertheless found the respondents’ requirement in this regard to be reasonable and bona fide. It is clear that, with respect to licenced establishments in Ontario, section 45(2) of Regulation 719 under the Liquor Licence Act, requires that a licence holder not permit the smoking of marijuana “on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.” I also accept Mr. Kindos’ evidence regarding his concerns for his liquor licence, had he permitted marijuana to be smoked in the licenced areas of his restaurant. See also Ivancicevic, above, at para. 150.

96To be clear, had I found that the complainant established a prima facie case in relation to the respondents’ requirement that he not smoke marijuana in close proximity (i.e. one to six feet) of the restaurant’s entrance, I also would have found the respondents’ requirement in this regard to be reasonable and bona fide.

97In their amended pleadings, the respondents assert that the Tribunal held in Ivancicevic, above, that a ban on the smoking of marijuana in a restaurant or an open air patio was a reasonable legislative goal given the possible pharmacological and toxicological effects of second-had marijuana smoke on bystanders. The respondents assert that they acted reasonably when they requested that the complainant cease smoking marijuana in close proximity to the patio and the entranceway to the restaurant, and that, in making this request, the respondents were concerned about the adverse effects the second-hand marijuana smoke would have on the restaurant’s other patrons.

98At the hearing, the respondents submitted that the complainant did not have problems at the restaurant because he has a disability, or because he uses marijuana, but because he continued to smoke marijuana in a way that was offensive to patrons. The respondents referred to Mr. Kindos’ evidence of the complainant standing at the door smoking marijuana while an individual was entering the restaurant. They submit that it would have been quite easy for the complainant to have taken a few steps and avoid doing that. The respondents submit that, instead, the complainant used marijuana in a way that was disrespectful of the legitimate concerns of others, such as the concerns of Mr. Head. Mr. Head, who understood that inhaling second-hand marijuana smoke could be detrimental to his career, testified that he walked through the complainant’s marijuana smoke while exiting the restaurant on one occasion.

99The respondents also referred to the restaurant’s “goodwill” and queried whether people would want to have to walk through a plume of marijuana smoke in order to get into a restaurant, or whether they might choose to go somewhere else. The respondents submitted that Mr. Kindos had no problem with the complainant’s marijuana and that he served the complainant for many years, but that he had a problem with marijuana being used in a way that was noxious to people entering and leaving his restaurant.

100In my view, the respondents’ requirement that marijuana not be smoked in close proximity to the restaurant’s entrance is reasonable and bona fide. It appears from the evidence that the respondents adopted the requirement in light of legitimate concerns for their patrons, including health-related concerns, that are “rationally connected” to running a licenced bar/restaurant. It also appears that the respondents adopted the requirement in good faith, in the belief that it was necessary in light of their legitimate concerns. Lastly, having regard to all of the circumstances, and not excluding “common sense”, it appears that permitting the complainant to smoke marijuana in close proximity to the restaurant’s entrance would have given rise to undue hardship. See British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1991] 3 S.C.R. 868 at paras. 20, 28 and 43.

Reprisal

101In correspondence dated March 25, 2008, after the subject matter of the Complaint was referred to the Tribunal and pleadings were exchanged, the Commission advised that it would be pursuing the issue of whether or not the complainant was reprised against for claiming and enforcing his human rights, contrary to sections 8 and 9 of the Code. The Commission indicated that it would be relying on the facts already set out in its pleadings in support of this issue and that it was the Commission’s position that the respondents reprised against the complainant by banning him from the restaurant after, and because, he asserted his right to smoke marijuana for medical purposes.

102The Commission also provided supplementary pleadings dated May 5, 2009, in which it raised the issue of whether or not the organizational respondent’s commencement of the application in Federal Court seeking, among other things, an order prohibiting Health Canada from renewing the complainant’s ATP was an act of reprisal.

103The respondents subsequently filed submissions in response to the Commission’s above correspondence and supplementary pleadings raising the issue of reprisal, denying that they subjected the complainant to any reprisal.

104While the complainant indicated on an earlier conference call that he wished to proceed with the allegations of reprisal as set out in the Commission’s materials referred to above, the issue of reprisal was not raised at the hearing. Neither the complainant nor the respondents made any submissions with respect to the ground of reprisal at the hearing.

105In addition, as reprisal was not mentioned at the hearing, there was never any request, nor was there any determination by the Tribunal, that the subject matter of the Complaint referred to the Tribunal be amended to include the ground of reprisal. In the circumstances, it appears that the ground of reprisal is not properly before the Tribunal for consideration.

106In any event, as noted above, it was not disputed that the complainant regularly smoked marijuana outside of the restaurant, without incident. I also found that the complainant smoked marijuana in close proximity to the restaurant’s entrance, after being asked not to do so, and that this is why he was ultimately asked not to return to the restaurant. In addition, I found that the complainant did not establish that he was disadvantaged in any way related to disability by the respondents’ requirement that he not smoke marijuana in close proximity to the restaurant’s entrance.

107In my view, the complainant does not have a disability-related need to smoke marijuana in close proximity to the restaurant’s entrance, and was not claiming or enforcing a right under the Code when he did so. Rather, prior to the hearing, the complainant denied that he smoked marijuana in close proximity to the restaurant’s entrance. In the circumstances, I do not see how asking the complainant to not return to the restaurant, after he was asked not to smoke marijuana in close proximity to the restaurant’s entrance and did so, could be seen as an intended retaliation on the part of the respondents for the complainant claiming or attempting to enforce a right under the Code. See Noble v. York University, 2010 HRTO 878.

108With respect to the application in Federal Court, a factum of one of the respondents in that matter, The Attorney General of Canada, on appeal in the Federal Court of Appeal, was entered into evidence at the hearing. No other information was provided, although the respondents submitted that the court proceedings were all a matter of public record.

109I note that, in correspondence to the Tribunal dated May 21, 2009, the respondents advised that the organizational respondent had launched proceedings in Federal Court, which, if successful, would make the proceeding before this Tribunal moot. The respondents indicated that the organizational respondent was seeking a number of declarations, including a declaration that the smoking of marijuana by the complainant in a public place, or at any establishment licenced under the Liquor Licence Act, is not authorized by the ATP. They also sought a declaration that an ATP does not authorize the possession or use of marijuana for medical purposes by anyone in a manner that is contrary to the express laws of the Province of Ontario prohibiting the holding or consumption of controlled substances on the premises of a holder of a licence issued under the Liquor Licence Act.

110In their response to the Commission’s supplementary pleadings, the respondents submitted that they were in contact with the AGCO from the outset of this Complaint regarding their obligations as a liquor licence holder, and the contention of the complainant and the Commission that a person holding an ATP is allowed to hold and smoke marijuana on licenced premises. They submitted that, in March 2008, the AGCO wrote to them and informed them that their liquor licence could be revoked if they permitted any person, regardless of whether or not they had an ATP, to hold, sell, distribute or consume marijuana on the premises, and that they could also be prosecuted. The AGCO further reminded the respondents that they could not serve liquor to any person who may be intoxicated as a result of consuming marijuana. At the hearing, the respondents provided a copy of a letter from the AGCO dated March 12, 2008, confirming their earlier submissions.

111The respondents assert that they were left in a precarious situation where they were receiving contrary instructions regarding their obligations, and referred to being at risk of losing their livelihood if their liquor licence was revoked. They submit that they therefore required clarification and certainty regarding their obligations with respect to the liquor licence and a person holding an ATP.

112I also note that The Attorney General of Canada, in its factum in the Federal Court of Appeal, submitted that the organizational respondent in this matter was seeking declarations for strictly collateral purposes, namely to assist it in the human rights proceedings brought by the complainant in this matter, and to shield itself in the event that charges are laid against it in the future under the Liquor Licence Act.

113As I understand it, the Federal Court of Appeal dismissed the organizational respondent’s appeal of the Federal Court’s dismissal of its application. The Federal Court of Appeal agreed with the lower Court that the organizational respondent lacked standing, but added that the complainant’s ATP “does not and does not purport to authorize him to use marijuana in any manner that is contrary to the Liquor Licence Act …, or to engage in any criminal activity, including trafficking marijuana…”

114Aside from the respondents’ written submissions, I heard no actual evidence at the hearing as to why the organizational respondent commenced an application in Federal Court, and the complainant did not make any submissions or give any evidence with respect to any allegation that the Federal Court proceedings constituted reprisal. In the circumstances, I also do not see how it could be determined on a balance of probabilities that commencing an application in Federal Court, after the present Complaint was referred to the Tribunal, could be seen as an intended retaliation on the part of the respondents for the complainant claiming or attempting to enforce a right under the Code.

115In my view, it is also quite likely that the commencement of related proceedings in Federal Court, in the particular circumstances of this case after the Complaint was referred to the Tribunal and pleadings were exchanged, would be covered by absolute privilege. The Tribunal has previously held that pleadings filed in judicial and administrative proceedings are protected by the doctrine of absolute privilege and cannot be the basis of a reprisal claim. See, for example, Hunter v. Farlake Dairy, 2011 HRTO 1906, and Ornelas v. Casamici Restaurant, 2010 HRTO 1078, upheld on reconsideration, 2011 HRTO 1531.

116For all of the above reasons, the Complaint is dismissed.