Graham v. Underground Miata Network Associations Inc., 2013 HRTO 1457

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Graham Applicant

-and-

Underground Miata Network Associations Inc. Respondent

DECISION

Adjudicator: Michelle Flaherty Date: August 26, 2013 Citation: 2013 HRTO 1457 Indexed as: Graham v. Underground Miata Network Associations Inc.

APPEARANCES BY

Donna Graham, Applicant ) Self-represented Underground Miata Network Associations Inc., Respondent ) Roland Beaulne, Representative

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application relates to whether a policy requiring club members to use Citizen Band (“CB”) radios in certain circumstances discriminates against the applicant because of her hearing disability.

2The respondent is a club of Miata car enthusiasts that, among other things, operates member-lead car tours. During these tours, members of the club typically travel in their Miata convertibles in a convoy to a pre-determined destination. The respondent’s policy is that the member leading the tour determines whether use of a CB radio is mandatory for that particular tour.

3The applicant has a hearing impairment, which she states limits her ability to operate a CB radio. The applicant argued that she has been discriminated against because CB radios are mandatory for some tours and because, notwithstanding her disability, the respondent has refused to exempt her from this rule. She also alleged that the respondent reprised against her when it suspended her membership in an online discussion forum.

4The respondent argued that it is entitled to set policies that are in the best interests of the club. It stated that its policies did not discriminate against the applicant because she has never been the driver in a tour and that her husband, the driver, is fully able to operate the CB radio. The respondent also argued that the applicant did not take reasonable steps to collaborate in the accommodation process because she failed to reasonably consider options for installing additional speakers in her vehicle, which it says would have allowed her to operate the CB radio. The respondent denied that it reprised against the applicant and states that it was simply responding to complaints about the applicant’s disruptive use of the discussion forum.

5The Tribunal held a hearing in this matter on August 20, 2013. I heard evidence from the applicant and from Rolland Beaulne and Dell Smith on behalf of the respondent. For the reasons that follow, the Application is dismissed. First, as I explain in more detail, below, I find that the respondent’s policy did not differentially impact the applicant, who at all times was the passenger in the vehicle. Second, even if the applicant was differentially impacted and the duty to accommodate was triggered, I am not satisfied that the she took reasonable steps to collaborate with that process. Finally, I find that the applicant has not established that the respondent intentionally reprised against her because she asserted rights under the Code.

THE FACTS

The mandatory use of CB radios

6The facts of this case are not in dispute. The applicant was a member of the respondent club from January 2010 to approximately February 2012. In approximately March 2011, the respondent formalized a policy, according to which each tour leader determines whether CB radio use is mandatory for that particular tour. Even after the formalization of this policy, most of the respondent’s tours did not require CB radio use. For example, in 2011, the respondent operated approximately 30 tours, three of which required participants to have a CB radio. For the other tours in 2011, CB radios were either recommended or optional.

7The respondent club was quite divided over the mandatory use of CB radios. Some members, including the applicant, felt that CB radios are an unnecessary distraction and cost. Others believe that they are necessary for safety reasons and to ensure that the convoy remains intact. While the formalization of the policy leaving use of CB radios to the discretion of tour leaders was being considered, the applicant was a member of the club executive. She opposed the mandatory use of CB radios and raised concerns about the cost of the CB radios. Ultimately, the applicant resigned from the executive because she disagreed with its policy on the use of CB radios.

8In August 2011, after she had resigned from the executive, the applicant sent an email to all club members through an online discussion forum asking that she be exempted from the CB radio policy because of her disability. The parties agree that this is the first time the applicant mentioned her disability in regards to the club policy and the mandatory use of CB radios.

9While members of the club, the applicant and her husband participated in a handful of tours, none of which required CB radio use. In the tours they did take (and for reasons unrelated to her disability), the applicant’s husband drove their vehicle and the applicant was the passenger. The applicant’s husband is fully able to operate the CB radio, although the applicant testified that he prefers not to do so. According to the applicant, this is because her husband takes the distracted driving laws very seriously.

10Some email correspondence from the respondent suggests that, where there are two persons in a vehicle during a tour, the passenger typically operates the CB radio. However, at no point does the respondent direct that only passengers should operate the CB radios. Indeed, individuals can participate in the tours without a passenger in the vehicle and they are expected to operate the CB radios on their own. With the exception of the tour leader and his or her passenger, most of the other participants use the CB radio for inbound communication. In other words, while a tour participant may use the CB radio to transmit information to other participants, there is no requirement to do so.

The applicant and her use of CB radios

11The applicant testified that she has very limited hearing in her left ear; even with a hearing aid, she can only hear background noise with her left ear. The applicant can hear quite well from her right ear, at about 80 to 90% of “normal” hearing.

12I understand from all of the witnesses’ testimony that CB radios are typically installed on or around the middle of the dashboard of the car. With this typical installation, the radio speaker is closer to the applicant’s left hear and she cannot make out what is being said. The applicant states that she is unable to use a CB radio installed in this manner, particularly when the convertible top is down.

13Typically, members participating in tours drive with the convertible top down. The applicant argues that it would defeat the purpose of the tour and that her vehicle would stand out if she and her husband were made to drive with the convertible top up just so she could use the CB radio. In any event, the applicant states that she is not certain she would be able to hear a CB radio installed in the middle of the dashboard, even if the convertible top is up.

14The applicant testified that she has experience using a marine radio in an open boat. She stated that, where she is able to place the speaker of the marine radio near her right ear, she is able to make out what is being said. She testified that, although she had not actually attempted to use a car CB radio in this way, she believes she could do so if a speaker were mounted near her right ear. She testified that for comfort and because of the nature of her hearing loss, she cannot use a headset.

15The applicant made only limited efforts to determine whether a speaker could be mounted near the right ear of the passenger seat in her vehicle. She testified that she went to a number of Wal-Mart stores in the United States, but that only some of those stores sold CB radios. In branches that did sell CB radios, the applicant was told that the clerk would need to see the vehicle in order to determine if a speaker could be installed by the passenger’s right ear. She was not driving the Miata on this particular trip to the United States, so could not show them the vehicle. However, the applicant subsequently made no attempts to show the vehicle to any mechanic, CB radio vendor, or speaker store clerk. Although the applicant was aware of a CB radio store in Oshawa (Durham Radio), she did not contact the store to inquire as to the possibility of installing such a speaker. Although the respondent has a number of CB radios that it loans to members, including units with a handheld device that the applicant could raise to her right ear, she made no attempt to borrow these to see if they met her disability-related needs.

16In response to the applicant’s comments about her disability and the CB policy on the discussion forum, a member of the executive proposed some options to her. Rolland Beaulne wrote:

Here’s a possible solution for you and Doug….Check out Louis-Philippe’s arrangement or better still go for a short ride in his Miata. He has 2 remove speakers attached to his splitter, I think, to his windblock. Each speaker is position very close to the driver & passenger’s ear. I have 1 remote speaker which I positioned very close to my right ear, and have no trouble making out all transmissions even at highway speeds and with the top down. [The passenger] can also hear the messages quite clearly. I believe that there might also be ways to boost the volume beyond what the CB usually puts out. Give Durham Radio a call, or check out their website at durhamradio.com.

17The applicant responded to this email, clarifying that she needed to mount a speaker on the right side of the passenger seat. However, she took no steps to consider any of the suggestions contained in the email and testified that she assumed none of them related to mounting a speaker by the passenger’s right ear. For example, she did not inquire as to whether the speaker Mr. Beaulne says he installed close to his right ear could be installed close to the passenger’s right ear. She did not email or speak to Louis-Philippe, although she acknowledged that she had his coordinates and could have communicated with him. In her evidence, the applicant explained that she did not contact Louis-Philippe because, approximately two weeks after Mr. Beaulne’s email, her access to the online discussion forum was suspended. The applicant acknowledged, however, that the suspension was for a limited period (approximately one week) and that she was reinstated to the discussion forum as of approximately September 13, 2011. After her reinstatement to the discussion forum, she made no attempts to communicate with Louis-Philippe. She states that, by this time, she had decided to file the Application.

18The applicant testified that she looked at internet sites (including one operated by Durham Radio) and took measurements of her vehicle to see if a speaker could be installed near her right ear. This research did not lead to a solution.

19Rolland Beaulne testified that the respondent has a few hearing-impaired members and a history of working with these members to find and install CB Radio equipment that meets their needs. Dell Smith testified that he drove essentially the same model of Miata as the applicant, that he consulted Rolland Beaulne about options available to him, and that he succeeded in installing a speaker on the right hand side of the seat.

20Throughout the proceeding, the applicant did not challenge that it is possible to install a speaker on the right hand side of the passenger seat, but argued that the respondent ought to have provided her with more information about how do to so. In other words, the applicant argued that the respondent failed to accommodate her because it did not do enough to help her obtain and install appropriate CB radio equipment.

Online discussion forum

21As noted, the applicant first raised her concerns about CB radio use and her disability in the online discussion forum. Messages posted on this forum are available to all members of the club.

22The applicant’s request for an exemption from the CB radio policy led to a considerable and lengthy online debate. Members of the executive weighed into the debate: the then-president of the club sent a message to the membership explaining the executive’s position. The debate degenerated, with some members complaining that the applicant’s postings were disruptive, using terms like “that’s enough”. One message contained comments that the applicant found particularly hurtful and disparaging. A member (referring to the applicant and her husband) wrote:

Both of you have been successful in rocking the boat so to speak and I personally would prefer to have limited exposure to either of you.

23In a message dated February 9, 2012, the then club president sent a message to the membership responding to the applicant’s concerns and the discussion to date. Further, on a number of occasions, members of the executive directed the applicant to stop using the online forum to request an exemption from the mandatory CB radio policy. Executive members told her to make her request of the executive directly. In her testimony, the applicant acknowledged that the executive (rather than the membership at large) likely had the ability to grant her an exemption. She stated that she chose to raise the issue in the online forum because she wanted the matter to be “public” and because she felt a more private, direct request to the executive would be ignored.

24Notwithstanding repeated requests that she direct her concerns to the executive of the club, the applicant continued to raise the issue in the online forum. As I have noted, the applicant’s access to the online discussion forum was suspended for approximately one week. In reinstating her access, the then-president of the club wrote on September 13, 2011:

There was agreement in re-establishing your access to Google talk, with the proviso that further comments regarding CB’s be directed to either the executive of the tour leader as appropriate…. Similar direction is going to the general membership as well.

The CB issue has reached a club saturation point in terms of being informative exchanges to now becoming divisive.

25The applicant states that the effect of the suspension was essentially a revocation of her membership. She states that all of the club information, including information about upcoming rides and activities, is available in the online forum. Some but not all of this information is available on the club website.

26The applicant’s membership was due for renewal in 2012. She testified that she sent a completed membership form and cheque to Steve, whom she understood to be the coordinator of membership. Her cheque was never cashed. She contacted another member of the executive, who advised her that the application had not been received and that Steve was no longer dealing with membership matters. The applicant testified that she made no further attempts to renew her membership and that she did not send a further application form or cheque to the respondent. The applicant states that, although members typically receive a grace period after their membership has elapsed, her access to the online forum was cut off as soon as her membership elapsed.

THE ISSUES

27The Application raises the following issues:

a. Does the respondent’s CB radio policy discriminate against the applicant?

b. If there is differential treatment, did the respondent fail to accommodate the applicant’s Code-related needs?

c. Did the respondent reprise against the applicant by suspending her access to the online discussion forum?

ANALYSIS

The Code

28The relevant provisions of the Code are as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

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

Discrimination

29The applicant bears the onus of establishing a prima facie case of discrimination: she must show that she has been treated differently from others on the basis of her disability. If the applicant establishes differential treatment based on a Code ground, the onus shifts to the respondent to demonstrate on a balance of probabilities that the applicant's allegations do not amount to discrimination or that she was reasonably accommodated. However, if the applicant cannot establish a prima facie case of discrimination, the Application will generally be dismissed and the respondent will not be required to address the allegations.

30I accept the applicant’s evidence that her hearing is impaired and she cannot effectively operate a CB radio installed in middle of the dashboard of her vehicle. In my view, however, there are two difficulties with the applicant’s remaining arguments.

31First, it is not entirely clear to me that the respondent’s policy differentially impacts the applicant in the particular circumstances of this case. As noted, the applicant has never been nor, at the material times, had she ever expressed the intention of being the sole operator of a vehicle on a tour. The respondent’s policy is that, in a limited number of tours, the vehicle must be equipped with a CB radio. The applicant was at all times seeking to participate in tours with her husband, who was capable of operating a CB radio. Although he would have preferred not to both operate the CB radio and drive the vehicle, the purpose of the Code is not to accommodate individuals’ preferences: Akash v. Toronto Transit Commission, 2012 HRTO 677. To put it differently, I find that the applicant’s disability did not prevent her from going on tours. Rather, her ability to participate in certain tours was limited because her husband preferred not to use the CB radio.

32While I make no determination in this regard, I note that there was no contention that listening to incoming messages on the CB radios runs contrary to any distracted driving laws. Further, if the applicant’s husband felt it was necessary to send a message on the CB radio, there was no suggestion that he could not pull off the road to do so.

33Second, even if I were to assume (without finding) that the mandatory use of CB radios has a differential impact on the applicant because of her disability, I cannot conclude that the respondent failed in its duty to accommodate the applicant.

34I agree with the respondent’s submission that an organization is generally entitled to develop the policies and practices it thinks best. Importantly, there is a key proviso to this: those policies and their application must be consistent with the respondent’s obligations under the Code. In some circumstances, it will not be sufficient for a respondent to insist on the uniform application of a policy. In cases where an applicant can establish that a policy differentially impacts her, the respondent’s duty to accommodate will be triggered. In those circumstances, the Code may require the respondent to implement a variety of accommodation measures, including granting exemptions.

35In the circumstances of this case, however, I cannot conclude that the respondent failed to appropriately accommodate the applicant. As I explained to the parties at the hearing, accommodation is a two way street and, while the respondent must show that it attempted to accommodate the applicant’s disability, the applicant must also show that she collaborated with that accommodation process: MacDonald v. Cornwall Public Library, 2011 HRTO 1323 at para. 42.

36In this case, I find that the applicant failed to collaborate with the respondent’s attempts to accommodate her. For example, as I have noted, she did not borrow the respondent’s loaner CB radios to see if the handheld device would meet her needs; she took only limited steps to locate appropriate equipment; she dismissed the respondent’s suggestions out of hand and took no steps to follow up with another member who had found a solution for his own hearing limitations. She took the position that the appropriate accommodation measure was an exemption from the CB radio policy. Throughout these proceedings, she also insisted that the respondent had an obligation to identify CB radio equipment that met her specific needs. Yet when the respondent tried to assist her, she was dismissive and failed to take reasonable steps to determine whether the proposed solutions might meet her needs.

37The applicant acknowledged that she could likely use a CB radio in a convertible if a speaker were installed near her right ear. The respondent’s evidence, which was not challenged by the applicant, is that a speaker can be installed in this location in the applicant’s vehicle. Given this, and given my conclusion that the applicant did not collaborate with the accommodation process, it is not necessary for me to determine whether the respondent should have exempted the application from the requirement to use a CB radio on certain tours. I make no finding as to whether the use of CB radios is reasonably necessary for the safety of the members attending the tour.

38I do not mean to suggest that the respondent’s reaction to the applicant’s request for accommodation is completely beyond reproach. The respondent acknowledged that it could have handled the matter better. However, the Code requires that the applicant receive “reasonable accommodation”, not “perfect accommodation”, and, in all of the circumstances, I conclude that the respondent did not discriminate against the applicant.

Reprisal

39To establish reprisal, the applicant must show that the respondent acted or made a threat with the intention of retaliating against the applicant because she had asserted rights under the Code: see Noble v. York University, 2010 HRTO 878 at paras. 33-34. In my view, the applicant has not established that the respondent had the requisite intention to reprise against her within the meaning of section 8 of the Code.

40In reviewing the documents submitted in evidence, I have no difficulty accepting that the online discussion had degenerated and become divisive. The applicant felt her concerns were stifled when she was suspended from the online forum and directed to address her concerns to the executive committee. The applicant also argued that her access to the forum was suspended, while members who made hurtful comments about her continued to have access.

41It is not for me to decide whether the respondent’s decision to suspend her was appropriate or fair. I have no such power under the Code: see, for example, R.H. v. Kawartha Pine Ridge District School, 2010 HRTO 2174 at para. 5. Instead, the question before me is whether the respondent suspended the applicant with the intention of retaliating against her because she had asserted her rights under the Code.

42On a balance of probabilities, I find that the respondent’s intention in suspending the applicant’s use of the online forum was to address complaints, manage a degenerating online discussion, and require the applicant to discuss the issue in what it felt was a more appropriate forum. In my view, there is no basis to conclude that the respondent’s intention was to reprise against the applicant within the meaning of section 8. In reaching this conclusion, I am influenced by the then-president’s email of September 13, 2011. He indicates that the entire membership had been directed to make their comments about the CB radio policy to the executive, not on the online forum. I accept that the applicant’s access to the online forum was suspended, in part, because she refused to comply with the executive’s directive.

43Similarly, the applicant has not established that the respondent reprised against her by terminating her membership. There is no basis beyond speculation that the respondent received the applicant’s application form and cheque but elected not to process it. There is also no evidence that shows the respondent intentionally reprised against the applicant by not giving her access to the online forum for a grace period following the termination of her member.

44For all of these reasons, the Application is dismissed.

Dated at Toronto, this 26^th^ day of August, 2013.

“Signed by”

_________________________________

Michelle Flaherty

Member