HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donna Austen
Applicant
-and-
Senior Tours Canada Inc.
Respondent
DECISION
Adjudicator: Ruth Carey
Indexed as: Austen v. Senior Tours Canada Inc.
APPEARANCES
Donna Austen, Applicant
Mindy Noble, Counsel
Senior Tours Canada Inc., Respondent
Danny Shay and Tina Horley, Representatives
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability.
2The respondent is a travel company that specialises in delivering group tours to seniors. In May of 2008, the applicant travelled to England with one of the respondent’s tour groups. The applicant enjoyed her trip and felt that it went well. The respondent felt otherwise. The respondent says its tour manager noted in its files that the applicant was “not suitable for group travel”.
3In March of 2009 the applicant called the respondent to provide it with a change of address. Again, the parties’ perspectives on what happened differ. For the applicant, the call was courteous, routine and not particularly memorable. But according to the respondent, the applicant’s behaviour was so problematic that it made the decision to remove her from its mailing list.
4In January of 2012 the applicant saw an advertisement for one of the respondent’s tours and called to order the brochure. According to the applicant, she disclosed to the respondent that she had multiple disabilities including claustrophobia and irritable bowel syndrome, and needed an aisle seat near the front when travelling by plane. That same day the respondent sent the applicant a letter stating it was refusing any further services to her because her “needs and expectations exceed the level of service we can provide.”
5The Application alleges that this refusal of further services is a breach of the Code because the applicant’s disabilities were a factor in the respondent’s decision. The respondent alleges the applicant did not disclose any disabilities; therefore disability had no bearing on its behaviour. According to the respondent, it declined additional services because the applicant’s behaviour is so unpleasant and combative it does not want to deal with her.
6After the applicant received the respondent’s letter she called the respondent to inquire as to why she was being “blackballed”. She spoke with the respondent’s general manager who refused to give her any reasons in keeping with its policy, which was stated in the letter itself. The applicant offered to provide medical documentation in support of her need for accommodations when travelling. The general manager declined the offer because she believed it would not change the respondent’s decision, and because the accommodations the applicant wanted were beyond the respondent’s control.
7The applicant alleges that this subsequent interaction with the respondent was a second breach of the Code. At that point the respondent knew the applicant was claiming she had a disability and was seeking accommodation, but failed to take any steps to investigate what accommodations were necessary or possible, thereby allegedly breaching the procedural duty to accommodate.
8The questions that arise in this Application are:
a. Is the applicant a person with a disability as defined under the Code?
b. Did the applicant disclose her disabilities to the respondent when she called to ask for a brochure in January, 2012?
c. If the answer to both questions above is yes, were the applicant’s disabilities a factor in the decision to send the letter denying the applicant further services?
d. When the applicant called the respondent after receiving the letter denying her further services, did the respondent breach its procedural duty to accommodate under the Code?
e. If the answers to c and/or d above are yes, what remedies should flow to the applicant?
PRELIMINARY ISSUES
Removal of the Personal Respondent
9At the beginning of the hearing I invited the parties to make submissions as to whether or not it would be appropriate to remove the respondent’s general manager as a party to the Application. She is named in the Application as a personal respondent but no remedies are sought against her and at all material times she was acting in the course of her duties as the corporate respondent’s employee. The parties agree that it is appropriate in this case to remove her as a personal respondent, so I have amended the style of cause accordingly.
The Case Management Conference Call
10On April 25, 2013, the Tribunal conducted a case management conference call which was convened after the self-represented respondents filed documents pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure indicating that the only witness they intended to call was the general manager. It appeared from the Response that she probably did not have any personal knowledge of some of the events giving rise to the Application.
11Counsel for the applicant participated in the call as did the corporate respondent’s president, Danny Shay, the general manager, and another employee named Odiele Daniels.
12During the course of the case management conference call I explained what hearsay evidence is and how it is usually given less weight than credible direct oral evidence subject to cross-examination. I indicated to the respondent that if it wished to call additional witnesses, including by teleconference, I would permit it to do so. I subsequently issued a Case Assessment Direction on May 1, 2013, that confirmed what I had stated at the end of the case management conference call; namely, that the respondents would be permitted to call additional witnesses at the hearing if they provided witness statements to the applicant and the Tribunal by May 6, 2013.
13On May 6, 2013, the corporate respondent wrote to the Tribunal requesting an extension of time for filing of witness statements. The applicant objected to the request, and before the Tribunal could respond to the extension request, the respondent wrote to confirm that the general manager would be its only witness.
14The hearing was held on May 16, 2013, and I heard oral testimony from the applicant and the general manager.
FINDINGS OF FACT
15Although the allegations of discrimination in the Application concern what happened in January 2012, both parties led extensive evidence about prior events. This evidence was admitted, and is considered below, because it is relevant to the respondent’s position, which is two-fold. First, the respondent argues that the evidence establishes it reached the decision to deny services to the applicant for non-discriminatory reasons in May of 2009, well before the events of January 2012. Second, it makes a similar fact argument; namely that the applicant’s behaviour prior to January, 2012, is more consistent with the respondent’s evidence than the applicant’s about how she behaved on January 23, 2012. So the argument is that the respondent’s evidence about the key event of January 23, 2012, is more believable than that of the applicant.
The Applicant’s Trip to England in May 2008
16In 2008 the applicant and her family booked and paid for a group tour to northern and western England with the respondent’s tour company. Prior to the start of the tour the applicant received an introductory letter from the respondent’s tour guide, David Harris, welcoming her to the group tour, describing some of the places she would see and the activities being offered. It stated:
… the most important thing to remember is that this is your holiday. ENJOY YOURSELF!! I am here to do anything and everything that is possible to make your holiday more pleasurable. Let me know immediately of your special requests…
Do not feel shy to approach me about any questions or challenges at any time, no matter how trivial it may seem. I will always give you my room number at each hotel also. [Emphasis in original.]
17On May 9, 2008, the applicant flew to England with the respondent’s group. For the first week they stayed in the Old Swan Hotel in Harrogate, North Yorkshire.
18Early in the applicant’s stay at the Old Swan Hotel she threw her back out. She wanted to see a doctor about it and had travel health insurance as part of her group tour package. She asked the hotel staff to call the insurer collect and put the call through to her room, which they did. She then opened a claim with the insurer and obtained a claim number.
19At this point the evidence of the parties conflicts. According to the applicant, she spoke to David Harris, who agreed to accompany her to the hospital to see a doctor. She saw a physician, who prescribed analgesics, and they then returned to the hotel. The applicant does not remember why, but Mr. Harris paid for the cab ride both ways. He never asked her to reimburse him. According to the respondent, Mr. Harris accompanied the applicant to the hospital, but this occurred during the second week of the tour when they were staying in Cheltenham. The respondent also claims that when the hospital told the applicant it would not accept her insurance and there would be a charge for the consultation, the applicant said she could not afford to pay and an emotional scene ensued until the hospital agreed to waive its charge. The applicant denies all of these claims of the respondent.
20Where the evidence of the parties conflicts with respect to the events of May, 2008, I find the applicant’s evidence to be more credible than the respondent’s. I say this for a number of reasons.
21First and foremost, the applicant entered into evidence documents which corroborate her testimony and contradict the evidence of the respondent. For example, it was the evidence of the respondent that it was during the second week of the tour, when the group was staying in Cheltenham, that Mr. Harris accompanied the applicant to the hospital. But the applicant entered into evidence a copy of the free sample of amoxicillin she was given by the hospital on their second visit and it is clearly dated during the first week of the trip while they were still at the Old Swan Hotel. The applicant also tendered receipts for the taxis to and from the hospital for their second visit, again corroborating her evidence that the hospital visits occurred during the first week of the tour, as well as directly contradicting the respondent’s evidence that Mr. Harris had paid for the taxi on both occasions.
22Second, all of the respondent’s evidence up to the key events of January 23, 2012, is hearsay. As I had explained during the pre-hearing teleconference, hearsay evidence is admissible pursuant to section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, but is usually given less weight than oral evidence subject to cross-examination. Mr. Harris did not testify. The general manager’s evidence reflected her understanding of what happened, but it is undisputed she has no personal knowledge of events up to January 23, 2012. Rather, the respondent’s evidence consists of notes prepared by an employee, Odiele Daniels, recording her conversations with Mr. Harris, and other employees of the respondent. Ms Daniels also did not testify.
23During her testimony, the general manager casually mentioned I could call Mr. Harris on the telephone if I wanted to, but the respondent did not ask that I do so. Given the pre-hearing teleconference during which I had informed the respondent it could call additional witnesses to testify, including by telephone, the subsequent Case Assessment Direction offering the respondent the opportunity to file additional witness statements, and the subsequent confirmation by the respondent that it would only be calling the general manager, I permitted the respondent to conduct its case as it saw fit with respect to its choice of witnesses.
24Third, the applicant’s testimony concerning the events of May 2008 was a coherent narrative, internally consistent, and not challenged or undermined through cross-examination.
25Based on the factors discussed above, I find the applicant’s evidence concerning what happened during her trip to England in May of 2008, to be more credible than that of the respondent.
26On May 14, 2008, the applicant was ill with a cough and again wanted to see a doctor. Mr. Harris again accompanied her to the hospital. This time the applicant paid for the cab rides and her receipts were entered into evidence before me. The doctor diagnosed the applicant as having bronchitis. He prescribed antibiotics and provided her with a sample pack of amoxicillin free of charge.
27The applicant chose not to participate in many of the day trips that were part of the group tour. Instead she spent time at the hotel and went for walks around the neighbouring area. The applicant also chose to dine alone on occasion. Sometime during the trip the applicant spoke to Mr. Harris and explained to him that she had anxiety that caused panic attacks and sitting with crowds to eat was too claustrophobic for her.
28The applicant had a wonderful time on her trip to England, and was particularly appreciative of the efforts of the staff at the Old Swan Hotel. On June 27, 2008, she wrote to the Hotel via e-mail to thank them, saying “I had a lovely time in Harrogate it was just lovely and every one was just so kind and helpful…”
29According to the respondent, when Mr. Harris returned from the 2008 tour he provided feedback about the tour. The respondent made notes in the applicant’s file on its custom booking system indicating that Mr. Harris felt she was not suited for group travel. For the reasons stated below, I am not prepared to find that was the case.
30On cross-examination, the general manager was asked if the reason the applicant was described as being not suitable for group travel was because she declined many of the day trips and did not always sit with the group for meals. She replied that no, that was not the reason; it was her understanding that Mr. Harris found the applicant to be too demanding. In her answer she specifically referenced the applicant’s lack of money, and the two trips to the hospital.
31The materials filed by the respondent also refer to the applicant’s lack of money and failure to pay expenses such as the cost of the taxi rides to the hospital and the medical examinations. But as noted above, the evidence establishes the applicant did in fact pay for one of the trips to the hospital. The Response states that the applicant refused to pay long distance charges at one of the hotels, which the applicant denies and her denial is supported in part by her bill from the Old Swan Hotel filed into evidence showing payment in full. Further, the applicant filed into evidence a copy of her group travel insurance in support of her testimony that there was no issue concerning payment at the hospital as alleged by the respondent. For the reasons explained above, the applicant’s evidence with respect to what happened on the tour to England in May 2008 is more credible than the respondent’s. So I do not accept the respondent’s view that the applicant refused to pay for things she was responsible for. As that is the primary reason given by the respondent as to why Mr. Harris considered the applicant to be too demanding, and being too demanding is allegedly why the respondent noted the applicant was not suitable for group travel, the totality of the evidence casts doubt on the respondent’s evidence that it noted in its records in 2008 that the applicant was not suitable for group travel.
32The respondent’s records were not disclosed to the applicant pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure or offered as evidence at the hearing. The respondent did not explain why it failed to produce this potentially corroborating evidence. The respondent’s only comment about these records was the evidence of the general manager who stated that she did not have the records with her at the hearing. This failure to disclose or produce relevant records readily available to the respondent without explanation is troubling given that one reasonable explanation for the failure is that the records do not exist.
33Given the above, I am not prepared to find that the respondent concluded in 2008 that the applicant was not suited for group travel.
The Applicant’s Change of Address Call in March of 2009
34The respondent led evidence concerning a telephone call in March of 2009 in support of its position that the applicant is typically demanding and combative, and in support of its contention that the decision to deny further services to the applicant actually occurred in March of 2009 and not in January of 2012 as claimed in the Application. Based on the evidence before me with respect to this call, I am not prepared to find that the applicant was demanding or combative during this telephone call or that the respondent decided at that point to refuse her further services.
35On March 23, 2009, the applicant called the respondent to notify it of a change of address. The general manager was not the person who the applicant spoke to, but she testified that it was her understanding that the applicant was abusive during this telephone call and yelled at the person she spoke to. The respondent did not identify the person who spoke to the applicant. The Response says that during this call the applicant was complaining about her previous tour. The respondent’s general manager stated at the hearing it was her understanding the applicant’s complaint at the time was more about the general state of the travel industry rather than about her specific trip in 2008.
36It was also her evidence that it is the policy of the respondent to send brochures of upcoming tours to any client who has purchased a tour in the past three years. She testified that as a result of the March 23, 2009, phone call and David Harris’ feedback that the applicant was not suited for group travel, the respondent decided it would no longer offer any services to the applicant. The applicant’s file was marked inactive, meaning that she no longer received regular mailings from the respondent. The respondent did not disclose or produce its records showing this inactivation of the applicant’s file.
37Initially in her testimony the applicant did not remember the telephone call of March 23, 2009, but when asked if she had called to change her address, she did remember doing so. She denies yelling at anyone during that conversation or making any complaints. However, she confirms that at some unknown point in time she stopped receiving the respondent’s brochures.
38The applicant’s initial inability in her testimony to remember this call might support the proposition that the applicant does not remember being abusive and yelling or cast doubt on her evidence as to what happened during it. But it seems to me that if the telephone conversation was as described by the applicant, and consisted solely of her providing a change of address, it would not be surprising for her to forget that it had occurred when asked about it more than four years later. The Application does not mention this phone call, which is consistent with the trivial nature of the conversation from the point of view of the applicant. It is mentioned for the first time in the Response. In her Reply, the applicant neither confirms the call occurred or denies it, but simply refutes she complained about her trip, which is consistent with the glowing e-mail she sent to the Old Swan Hotel and her testimony before me.
39With respect to the fact that the applicant confirms at some point in time she stopped receiving the brochures, I suggested at the hearing that might be corroboration the applicant’s file was deactivated in March of 2009. But the applicant was not asked if she could recall when she stopped receiving the respondent’s brochures. Given the respondent’s policy that the brochures would have stopped being sent to the applicant three years after the applicant’s trip in May of 2008 anyway, her admission cannot be taken as support for the proposition that they stopped because her file was deactivated in March of 2009.
40It also seems unlikely that the applicant would call and complain about the 2008 tour to the respondent as is claimed in its Response given the evidence that she very much enjoyed that tour. The respondent’s general manager’s correction of that statement to the effect that the applicant’s complaint was about the travel industry in general and not the 2008 tour specifically does not assist much, given she was not the person who spoke with the applicant at the time and cannot be certain as to what was said.
41As stated above, the respondent offered evidence about the phone call of March, 2009 in support of two propositions.
42First, it argues that the phone call is further evidence in support of the conclusion that the applicant is typically combative and demanding. The difficulty with this proposition is that I am satisfied that the applicant’s evidence as to what occurred during the call is more reliable than that of the respondent’s. The respondent’s sole witness was not a party to the telephone call, her understanding as to what was said during it with respect to the applicant’s alleged complaints about travel contradicts the respondent’s written materials filed, and alleged relevant potentially corroborative business records in its control were not produced without explanation. In comparison, the applicant’s evidence was given under oath, subject to cross-examination, internally consistent, consistent with her written filings, and believable. Therefore, I am not prepared to find the applicant was combative or demanding during the telephone call of March 2009.
43Second, the respondent offers evidence with respect to the telephone call of March 2009 in support of the proposition that it decided to deny further services to the applicant at that point in time rather than in January 2012 as claimed in the Application. One difficulty with this contention is that the respondent’s general manager contradicted herself in her testimony about when the decision to deny further services was made. In examination-in-chief she stated the decision was taken after the March, 2009 telephone call; but under cross-examination she stated that David Harris deactivated the applicant’s file in 2008 when he returned from the tour to England.
44The other difficulties with respect to the contention that the applicant’s file was deactivated in March 2009 are that it was not communicated to the applicant or acted upon by the respondent the next time the parties had contact. The next contact between the parties occurred in January of 2012, when the applicant left a message requesting information about an upcoming tour. The respondent’s materials say the respondent’s branch manager, Luci Nidzgorski, returned the applicant’s call “to inform her that we were unable to get any additional single space for her on this tour”. As the applicant argued in her submissions, it is not credible that the respondent decided to deny further services to the applicant in March 2009 and noted that in its computer records, given it later returned the applicant’s calls about upcoming trips and tried to find her an additional single space on the tour she was interested in.
45For the reasons stated above, I am not prepared to find that the respondent decided to refuse further services to the applicant in March of 2009.
The Events of January 23, 2012
46The next contact between the parties occurred on January 23, 2012, when the applicant called after seeing an advertisement in the newspaper for one of the respondent’s tours. The applicant believes she only called once, although conceded at the hearing she was unsure and it might have been twice. She was interested in the advertised tour so she called to ask for a copy of the brochure. She was told that on that particular tour, there were no single spaces still available, so the applicant asked about upcoming tours in the fall.
47According to the applicant, she told the respondent that she experiences panic attacks as a result of an anxiety disorder and has been diagnosed as having depression but that she takes medication and has been stable for many years. She also testified that she told the respondent that she has irritable bowel syndrome and claustrophobia which is why she would need an aisle seat at the front of the plane if she signed up for one of the tours in the fall. It was the applicant’s evidence that after saying “a couple of other things”, the respondent’s employee “didn’t say much” and the call ended.
48According to the respondent, the applicant called the respondent and spoke with a consultant. A message was left and the branch manager in Calgary, Ms Nidzgorski, called the applicant back. She informed the applicant there was no space left on the tour in question. Its documentary evidence says the applicant then called back two more times to ask about other tours only to discover those tours also had no single spaces available.
49The respondent’s notes of interviews with its employees entered into evidence state that at no time during these telephone calls did the applicant say anything about having a disability. Those notes also say:
Our branch manager Ms. Luci Nidzgorski called Ms. Austen to inform her that we were unable to get any additional single space for her on this tour and according to Luci Ms. Austen was displeased with her response and she became combative and launched into a 20 minute tirade about the travel industry and hung up. During that same conversation when the issue of seat selection arose Luci remembers Ms. Austen demanding to get an aisle seat. Luci vividly recalls having told Ms. Austen that we cannot accommodate specific seating requests because our contracts with the airlines do not allow this in the group booking environment…
… According to our staff Ms. Austen is unable to accept no for an answer during any conversation and this is when she becomes rude with staff.
Following the third and last conversation Luci had with Ms. Austen she felt that she was being harassed and so she contacted our GM via e-mail requesting that a letter be sent to Ms. Austen as she is very demanding and argumentative, not accepting of the fact that we cannot guarantee the seat she wants on the aircraft.
50The respondent’s general manager testified that after the conversations with Ms. Nidzgorski, she received an e-mail from her. This e-mail was not entered into evidence at the hearing or disclosed to the applicant, and the general manager’s testimony as to what it says was internally inconsistent. For example, at one point the general manager testified the e-mail says that Ms. Nidzgorski had spoken with the applicant several times that morning, describes the applicant as combative and non-accepting of answers, and recommends the applicant be discontinued as a client. At another point the general manager testified that the e-mail did not ask that the applicant be discontinued as a client, rather Ms. Nidzgorski asked that the applicant be informed she had been deactivated in March of 2009. Given that the letter the general manager subsequently sent did not inform the applicant her file had been deactivated as a client in March of 2009, I find it more likely that the e-mail requests the general manager send a letter discontinuing services.
51On cross-examination it was put to the respondent’s general manager that because she was not party to any of the applicant’s telephone conversations, it was possible that Ms. Nidzgorski might have decided to send the e-mail recommending the applicant be discontinued as a client because the applicant disclosed her disabilities. The respondent’s general manager denied Ms. Nidzgorski would deny services because of a disability, given her knowledge of Ms. Nidzgorski’s professionalism and experience. However, she also stated that it was possible the applicant had disclosed information about her disabilities to Ms. Nidzgorski over the telephone that day. In other words, the applicant may have disclosed her disabilities, but the general manager does not believe that is why Ms. Nidzgorski recommended she be discontinued as a client.
52The primary factual dispute between the parties in this Application is whether or not the applicant disclosed to Ms. Nidzgorski that she has multiple disabilities including claustrophobia and irritable bowel syndrome and needs accommodation when travelling because of those disabilities. Based on the evidence before me I am satisfied that she did. I say this because I find the applicant to be a credible witness and the respondent’s only witness conceded at the hearing it was possible the applicant did disclose her disabilities to Ms. Nidzgorski.
53With respect to the applicant’s credibility, at the hearing I specifically raised apparent contradictions between the applicant’s testimony and materials filed with respect to the nature of her disabilities.
54The Application states that the applicant has irritable bowel syndrome and suffers from claustrophobia. She testified at the hearing that she has multiple disabilities which include irritable bowel syndrome and claustrophobia, but she also suffers from depression, and an anxiety disorder resulting in panic attacks, conditions that are not mentioned in the Application, which was prepared on her behalf by counsel. The applicant also filed into evidence a letter from her family physician dated January 29, 2012. It does not confirm the diagnoses of irritable bowel syndrome, claustrophobia, depression, anxiety disorder, or mention panic attacks but rather it says she has an unstable bladder (urgency of urination) and needs access to the washrooms on planes. This letter was written two days after the applicant called the respondent’s general manager to ask why she was refused further services. It is clear from its content that it was written at the request of the applicant to offer medical support for the applicant’s accommodation needs, yet it makes no mention of her irritable bowel syndrome or claustrophobia – the stated reasons in the Application for her need for aisle seating at the front of the plane when travelling.
55I am not prepared to find that the discrepancies in the medical evidence between the Application, the applicant’s evidence, and her doctor’s letter undermine the applicant’s credibility with respect to what was said in her telephone conversation with Ms. Nidzgorski on January 23, 2012. I say this because there is no requirement that an applicant disclose all of her disabilities on an Application, so non-disclosure on the Application of disabilities not central to the claim of discrimination is non-material. Further, the applicant’s doctor was not called to testify so the letter is hearsay. In addition, I would point out that the letter is so poorly written it is reasonable to conclude the applicant’s doctor did not put much thought into it. It says:
I am writing to you on behalf of Donna-Lynn as the attending family doctor. She has asked that I write to
- Request an isle [sic] seat on her aircraft flights
She has an unstable bladder (urgencyof [sic] urination) and needs access to the bathrooms on a more urgent basis. The isle [sic] seat provides more access to the washrooms on the planes> [sic] Anyposion [sic] you may be in to allow for this on her aircraft/bus seating would make her medical problem much more managable [sic]. Thank you.
56The remainder of the applicant’s testimony was credible. She admitted that her memory regarding the March 2009 telephone call was poor and acknowledged forthrightly she had forgotten it until prompted by questions about whether or not she had ever changed her address with the respondent. She also presented documentary evidence that corroborates some of her oral evidence and directly refutes claims made by the respondent, including: her contemporaneous hand-written notes showing her insurance claim number from her call to the insurance company from Harrogate in 2008; her taxi receipts from the second trip to the hospital with David Harris (the respondent claimed Mr. Harris paid for the second trip in addition to the first); her prescription for amoxicillin confirming the date of her second trip to the hospital in Harrogate (the respondent claimed both trips to the hospital happened in the second week of the tour in Cheltenham); and her invoice from the Old Swan Hotel showing she had no unpaid charges (the respondent claimed the applicant refused to pay long-distance charges). The applicant’s credibility was not challenged or undermined on cross-examination.
57Besides the question of whether or not the applicant disclosed her disabilities to Ms. Nidzgorski on January 23, 2012, the only other dispute between the parties in the evidence concerning that day was with respect to the number of telephone calls the applicant made. As the applicant conceded she might be mistaken as to the number of times she called, I accept the respondent’s evidence that it was three times. As it was the respondent’s evidence that the applicant was interested in multiple European tours and she discovered each was already booked with respect to single spaces when she asked about it, I believe it is not entirely surprising she called more than once. More importantly, the number of times the applicant spoke with Ms. Nidzgorski is not material to the issues in dispute in the Application.
58The basic thrust of the respondent’s case seems to be that its evidence with respect to the group tour in May 2008, and the telephone call in March of 2009, supports the conclusion that the applicant was typically difficult and argumentative. If that is true then its version of what happened on January 23, 2012, should be more believable as it is consistent with the prior incidents. The difficulty with this reasoning is that for all of the reasons stated above, the respondent’s evidence is wholly insufficient to establish its version of the prior events is more likely than the applicant’s.
59For the reasons stated above, I find the applicant to be a credible witness and I accept her evidence over that of the respondent with respect to the telephone conversations of January 23, 2012. I am satisfied that the applicant disclosed to Ms. Nidzgorski she has multiple disabilities including claustrophobia and irritable bowel syndrome and needs accommodation when travelling because of those disabilities.
60The respondent’s general manager then wrote a letter to the applicant dated January 23, 2012. The letter says:
We are writing to recommend that you seek out an alternative travel agency for any future travel arrangements as we believe your needs and expectations exceed the level of service we can provide.
As per the Terms & Conditions in our brochure, we reserve the right to decline any passenger as a member of our tours at any time for any reason at our sole discretion. We are under no obligation to provide information regarding the basis for this decision and will deny a request to do so.
In light of the above, and with our mutual interests in mind, we have removed your name from our mailing list so that you will not receive our brochures.
61The reference in this letter to Terms & Conditions is with respect to a clause contained in a standard contract for services the respondent uses. It reads as follows:
STC reserves the right to decline any passenger as a member of our tours at any time for any reason at our sole discretion. Travellers should be in good physical condition. Those who require more than minor assistance must be accompanied by a partner who is capable and totally responsible for providing this assistance. [Emphasis in original.]
62According to the general manager, this clause is not relied on to refuse services to people with claustrophobia or who need to use a bathroom frequently. She testified that the respondent moves thousands of people a year, many of whom have disabilities; she herself has been on a tour to the Middle East where a male client had claustrophobia; and seniors often need frequent bathroom breaks so the respondent deals with that on a daily basis. It was her evidence that prior to sending the letter to the applicant she had no knowledge of any of the applicant’s alleged disabilities and that was not the basis or a reason why the letter was sent. She further testified that although such letters are rare, the respondent does send them out maybe once to three times a year in a standard form identical to the one sent to the applicant.
63It may be true that when the general manager wrote the letter of January 23, 2012, she had no personal knowledge of the applicant’s disabilities as she had never spoken to the applicant up to that point and was merely relying on what Luci Nidzgorski told her. Ms. Nidzgorski was acting within the scope of her duties as an employee of the corporate respondent so the respondent had knowledge of the applicant’s disabilities. I have found as a fact above that Ms. Nidzgorski asked the general manager to discontinue the applicant as a client in her e-mail, and the general manager sent the letter in response to that request. As a result, the general manager’s specific knowledge when the letter was sent is not relevant to the issues in the Application.
The Applicant’s Call after Receiving the Respondent’s Letter
64When the applicant received the respondent’s letter of January 23, 2012, she called the respondent’s general manager to ask why she was being denied further services. The respondent’s general manager testified this call occurred on January 27, 2012, a date I accept as the applicant does not dispute it.
65Consistent with the content of the letter, the respondent’s general manager refused to elaborate on the reasons. She stated during her oral evidence that she recalled the applicant saying something about getting a doctor’s note during their conversation, but that would not have made any difference: “I would have said something to the effect that with or without a doctor’s note there is nothing we can do about the airlines”. This was a reference to general airline policy that specific seat selection is not available when booking group tours. As an example, the respondent entered Air Canada’s terms and conditions into evidence at the hearing which reads in part as follows:
SEATING:
Generic advance seating is completed at time of booking. Specific seat selection is not permitted. Air Canada is unable to accept specific seating requests, leave open seating within the group block, or make adjustments to the seating once assigned. Please ensure to provide passenger name lists in the order in which seat selection is preferred.
SPECIAL SERVICES:
Special service requirements should be advised to Air Canada Group Express not later than seven (7) days prior to departure.
66The respondent’s Terms & Conditions document also makes reference to this problem and the respondent’s preferred solution, which is to advise travellers to purchase flights directly from the airline and pay the respondent only for the land portion of the trip:
You may also purchase our tours on a “land only” basis and arrange your own flights independently.
STC will attempt to accommodate special requests by notifying the suppliers in writing. We cannot guarantee that special requests, for example room locations, adjoining rooms, meal requirements for flights or hotels, seating requirements for flights, etc. will be adhered to by our suppliers, and therefore we cannot be held responsible. [Emphasis in original.]
67Under cross-examination the respondent’s general manager confirmed her testimony in chief that when she spoke with the applicant after the January 23, 2012 letter was sent, the applicant mentioned something about getting a doctor’s note in the future. She immediately thereafter denied having any specific recollection of that. She offered no explanation for this reversal or discrepancy and given the two admissions that a doctor’s note was mentioned, I am satisfied that when the applicant telephoned in response to the January 23, 2012 letter, she stated she could get a doctor’s letter for the future about her accommodation needs. This is also consistent with what happened immediately thereafter, namely two days later, the applicant obtained the letter from her family doctor quoted above. The respondent’s general manager was asked under cross-examination if she made any inquiries of the applicant concerning what accommodations the applicant needed in order to travel and stated that she did not.
68No evidence was led by the respondent that the applicant was in any way combative or rude during her phone conversation with the general manager on January 27, 2012.
69The applicant testified that when she received the letter from the respondent dated January 23, 2012, denying her services, she was initially “in a state of shock”, “kind of upset”, and “it really hurt”. After she called and spoke to the respondent’s general manager on January 27, 2012, the applicant came to the conclusion she was being discriminated against because of her disabilities and in particular, because of her mental health disabilities. She testified that although her condition is “stable” she still has “off days” and the respondent’s actions made her “feel like you’re being thrown under the carpet”, like the respondent wants to “toss her away”, “treating mental illness like it’s a terrible crime”. The respondent did not dispute or challenge this evidence concerning the impact on the applicant of the respondent’s conduct, so I accept her evidence in this regard in its entirety. No other evidence was offered concerning how the respondent’s conduct affected the applicant.
ANALYSIS
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.
71The respondent did not dispute that the services it provides fall within s. 1 of the Code and I am satisfied that is the case. See Tulul v. King Travel Can, 2011 HRTO 438.)
72I am also satisfied that the applicant is a person with a disability. Pursuant to s. 10(1) of the Code “disability” includes:
any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness … [or] a mental disorder…
73This definition is sufficiently broad to include both irritable bowel syndrome and claustrophobia and the respondent does not dispute that is the case. Although I raised the question of whether or not the applicant is a person with a disability at the hearing because of the discrepancies between the applicant’s testimony and her doctor’s letter, those discrepancies were satisfactorily addressed by the applicant as indicated above.
74The respondent argues that the Tribunal should find the applicant is not a person with a disability under the Code for lack of evidence with respect to the diagnoses of claustrophobia and irritable bowel syndrome. The applicant’s sworn testimony as to her disabilities is evidence. Given my finding above with respect to her credibility and the respondent’s failure to challenge her testimony concerning disability by cross-examination, I am satisfied the applicant has irritable bowel syndrome and claustrophobia and is a disabled person under the Code.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
76In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court explained what an applicant must establish to prove discrimination (at para. 33):
…to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
77I am satisfied that the applicant’s disclosure of her disabilities on January 23, 2012, was a factor in the respondent’s subsequent refusal to provide the applicant with travel services. I say this because the respondent’s evidence was that it decided to decline further services because the applicant was combative and refused to take no for an answer. According to the respondent the applicant talked about three things on January 23, 2012: the travel industry in general; the lack of single spaces on tours she was interested in; and her requests around advanced seat selection. Those are the only things she could have been combative about. Although the two former factors are not related to disability, the latter is.
78The respondent argued that it was the applicant’s rude behaviour that triggered its refusal of service rather than the content of what she was talking about. For the reasons stated above, I am not prepared to find the applicant was in fact rude or combative on January 23, 2012. The only direct evidence of how the applicant behaved prior to January 27, 2012, was given by the applicant who denied being combative or rude in any way. Further, the only respondent witness spoke to her on January 27, 2012, when she called about the letter denying services, and the general manager did not testify she was combative during that telephone call.
79In the absence of any other credible explanation for the respondent’s decision to decline further services, I am satisfied that the applicant’s disclosure of her disabilities was a factor in that decision. Therefore, I find that the respondent infringed the applicant’s rights under section 1 of the Code on January 23, 2012, when it refused her further services.
80The applicant submitted that the respondent was also in breach of the Code with respect to the procedural duty to accommodate. She argued that when the applicant spoke with the respondent’s general manager after receiving the letter of January 23, 2012, the respondent breached the procedural duty to accommodate by failing to follow up on the applicant’s remarks about being able to get a doctor’s note. In other words, at that point in time the respondent should have made inquiries as to the applicant’s needs and how they could be accommodated.
81The duty to accommodate arises under the Code in ss. 11, 17 and 24, in the context of a defense available to respondents who seek to justify otherwise discriminatory conduct. Here, the respondent did not offer a justification defense with respect to the letter of January 23, 2012, as its position was that the conduct in question could not be discriminatory as it had no knowledge of the applicant’s disability and was entitled to refuse services.
82However, the general manager explicitly testified that when the applicant called on January 27, 2012, to ask for an explanation as to why services were being denied, the applicant said something about getting a doctor’s note and she replied that with or without a doctor’s note there is nothing we can do about the airlines. Given the evidence of the general manager, and the content of the doctor’s note the applicant obtained immediately thereafter, I am satisfied that the applicant asked for accommodation of her disabilities again on January 27, 2012, and the respondent refused to take any further steps or actions.
83The procedural duty to accommodate requires the respondent to make appropriate inquiries into the nature of the applicant’s disability-related needs and give thought and consideration to the issue of accommodation, including what, if any, steps can be taken to provide accommodation. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at paras. 64-65. In Lane v. AGDA Group Consultants Inc., 2007 HRTO 34, upheld ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), the Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation.
84Pursuant to s. 11(1) of the Code, the respondent’s policy that it cannot provide advance seat selection to any of its clients constitutes a qualification that results in a restriction for those persons with disabilities who require selected seating because of disability. The respondent’s position is that this qualification is reasonable and bona fide because it is imposed upon them by the airlines and there is nothing the respondent can do about it. In other words, the respondent takes the position that there is no accommodation it can offer to address the applicant’s disability-related needs.
85It may be true that there is nothing the respondent can do about the booking policies of the airlines, but that does not mean there are no steps it can take to help someone travel who needs advance seat selection. As its own Terms & Conditions indicate, the respondent can separate out air travel from the land-based portion of its tours and offer to book air travel individually. At least with Air Canada, it can also provide a passenger list “in the order in which seat selection is preferred” in order to try and get seating for a particular passenger near the front or rear of a seating block.
86The applicant did not argue that there were other or additional accommodations the respondent could or should have provided. Rather, it was the applicant’s position that the respondent had an obligation to do more on January 27, 2012, than simply say there was nothing that could be done. I agree. The applicant could have offered to explain to the applicant in writing the option available to her with respect to land-only tours and offered to book any required flights for the applicant on an individualised basis so advanced seat selection could occur. It could have asked questions about her needs. Instead it simply decided to reiterate its earlier decision to refuse services without explanation. I am satisfied that in doing so the respondent breached its procedural duty to accommodate and section 11 of the Code.
REMEDY
87The Application requests both monetary and non-monetary remedies.
88Section 45.2(1) of the Code sets out the remedies the Tribunal may award on an application such as this one:
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
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.
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.
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.
Monetary Remedy
89The Application requested that the applicant be awarded $15,000 as compensation for injury to dignity, feelings and self-respect. Given the circumstances of this case, and for the reasons stated below, the respondent will be required to pay to the applicant $5,000 as compensation for injury to dignity, feelings and self-respect with respect to the denial of further services contained in the letter of January 23, 2012, and with respect to its breach of the procedural duty to accommodate on January 27, 2012.
90As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. The intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory act. See: ADGA Group Consultants Inc. v. Lane, above, at para. 150. In this Application, no evidence was led that the applicant was prevented from travelling as a result of the respondent’s actions, or that she would have gone on a trip if the respondent had sent her the brochure she was asking for when she called on January 23, 2012.
91In Lane, above, the Divisional Court also says (at para. 153):
Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.
92As is indicated in Lane, above, there is no fixed formula for the Tribunal to follow to assess a monetary compensation award (at para. 157), there is no limit to the amount that can be awarded, and the quantum must not be set too low because that would “trivialize the social importance of the Code” (at para. 152). In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated (at paras. 51-54):
Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…
…The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination…
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. …
…The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.
93In terms of cases with equivalent facts, the applicant referred to Bourdeau v. Kingston Bazar, 2012 HRTO 393, which also involved the denial of a service as a result of disability. In Bourdeau, the visually impaired applicant and her husband went shopping with the applicant’s guide dog and were refused services by the respondent store because of the presence of the dog. The person who asked the applicant to leave the store did not direct his comments to the applicant but ignored her, and spoke only to the applicant’s husband. In deciding to award $15,000 for monetary compensation for injury to dignity, feelings and self-respect, the Tribunal stated (at para. 22):
While this was a relatively brief encounter, it was a public embarassment [sic] and the approach of the person who ejected the applicant from the store was abusive; the applicant was understandably extremely upset.
94Like Bourdeau, above, this Application is about a denial of service, but there was no public scene or the added humiliation of the respondent ignoring her and directing its comments to a companion.
95The applicant also referred me to Hayes v. Workplace Safety and Insurance Board, 2012 HRTO 2126, where the Tribunal awarded $5,000 compensation for injury to dignity, feelings and self-respect. Hayes involved a failure on the part of the respondent to provide direct deposit of on-going benefits payable to the applicant. In Hayes, the discriminatory conduct meant the applicant was in a vulnerable position as his disability meant he was sporadically reliant on others to do his banking for him, he was robbed as a result, and the denial of the service occurred over a number of years. None of those factors are present here so Hayes offers little guidance.
96I was also provided with Huang v. 1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association), 2006 HRTO 1, in which the Tribunal awarded $10,000 for compensation for injury to dignity, feelings and self-respect. In Huang, the elderly applicant was not permitted to renew her membership in the respondent association because of her creed and repeatedly refused membership. The impact of the respondents’ conduct in Huang included her being shunned by a number of her former friends (at para. 34) and the Tribunal stated (at para. 80):
The respondents have deliberately and repeatedly publicly excluded her from their Association for a discriminatory purpose and demeaned her by referring to her creed as an “evil cult”.
97Like Bourdeau, Huang is distinguishable from the facts in this Application in that there is no element of public shaming of the applicant. Like Hayes above, Huang involved a situation that was on-going for a period of time and not a one-time incident.
98Tulul, above, was not provided by the applicant but is relevant to the question of remedy here because it is a decision of the Tribunal involving services offered by a respondent travel agency. The Tribunal states (at para. 107):
In this case, the family saved their money for several years as it was an expensive trip, and the first of its kind for the applicants and their children, who had not previously been out of the country, to engage in both a religious pilgrimage and to visit with family members in Saudi Arabia and Sudan.
99In Tulul, the discriminatory actions of the respondent resulted in the applicants being unable to travel on their chosen dates to participate in religious rituals which “ruined” the female applicant’s trip (at para. 108). She was awarded $15,000, and the male applicant $5,000. The difference in the two awards was due to the fact that although the male applicant also was unable to travel on the chosen dates, he was not prevented from enjoying all of the planned religious rituals.
100In Wozenilek v. 7-Eleven Canada, 2010 HRTO 407, the Tribunal found a breach of the procedural component of the duty to accommodate when the respondent store delayed investigating for at least 18 months how it could accommodate a disabled customer who needed an automatic door opening device. The Tribunal awarded $6,000 to the applicant for compensation for injury to dignity, feelings and self-respect. That case differs from this one in that the applicant continued to access the store which meant that he had to wait for someone to open the door for him every time, an experience which he repeatedly found upsetting.
101In terms of first principles, I believe that the general manager’s failure on January 27, 2012, to consider options with respect to how the applicant could be accommodated, although unacceptable, is objectively less serious than the behaviour in in Wozenilek, above, because the applicant in that case continued to use the store for many months, was repeatedly denied accommodation, and the impact of the respondent’s behaviour included an element of public humiliation.
102Taking into account the objective seriousness of the respondent’s behaviour in sending the letter of January 23, 2012, and refusing to consider accommodation on January 27, 2012, the evidence of impact on the applicant, and the case law described above, I am of the view that a reasonable amount of compensation for injury to dignity, feelings and self-respect with respect to the denial of services on January 23, 2012, and the breach of the duty to accommodate on January 27, 2013, is $5,000.
Non-monetary Restitution
103I decline to award the remedy requested in this Application pursuant to s. 45.2(1)2.
104The Application states: “I would like to be able to book future travel arrangements with Senior Tours Canada Inc. and receive the accommodations that I need.” Essentially this is a request that the respondent be ordered to comply with the Code in the future. This is an ongoing obligation owed to the applicant and anyone requiring accommodation for a Code-protected need.
105As stated above, it may be true that there is nothing the respondent can do about the booking policies of the airlines, but that does not mean there are no steps it can take to help someone travel who does need advance seat selection. The respondent is fully aware of these steps it can take to accommodate the applicant’s needs in the future should she choose to use their services again.
Remedy for Future Compliance
106I also decline to award the remedy requested pursuant to s. 45.2(1)3.
107The Application requested that the respondent be required to develop a human rights policy, that its staff undergo training in human rights with a focus on accommodation of disabilities, and that its written communications with clients include a statement about compliance with the Code.
108Since this Application was filed, the respondent has developed a human rights policy in order to comply with its obligations under the Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32, and its employees have been trained with respect to that policy. The applicant argued at the hearing that the respondent’s policy failed to address mental health disabilities. Although the respondent did not enter the policy into evidence at the hearing, it was filed with the Tribunal as part of its disclosure, and the applicant agreed the Tribunal could take note of it. Contrary to the assertion of the applicant, it does in fact include mental health disabilities. As a result, it would serve no useful purpose to require the respondent to develop a new policy or re-do its training.
109As for the request that the respondent be required to include in its written communications with clients a statement about compliance with the Code, because it is a travel agency some aspects of its services may not be within provincial jurisdiction. If that were the case, such a statement would be misleading.
DECISION
110The Tribunal makes the following order:
a. The Application is granted;
b. The respondent shall pay to the applicant $5,000 as compensation for injury to dignity, feelings and self-respect;
c. The respondent shall also pay to the applicant pre-judgment interest on the full amount due under paragraph b. above, for the period January 27, 2012, to the date of this Decision, calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;
d. The respondent shall also pay to the applicant post-judgment interest from the date of this Decision, calculated pursuant to s. 129 of the Courts of Justice Act.
Dated at Toronto, this 16^th^ day of August, 2013.
“Signed by”
Ruth Carey
Member