Freitag v. Midland (Town), 2013 HRTO 1647

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry Freitag

Applicant

-and-

The Corporation of the Town of Midland

Respondent

DECISION

Adjudicator: Ruth Carey Date: October 2, 2013 Citation: 2013 HRTO 1647 Indexed as: Freitag v. Midland (Town)

APPEARANCES

Henry Freitag, Applicant Self-represented

The Corporation of the Town of Midland, Respondent Andrew Mae, Counsel

Introduction

1These Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allege discrimination with respect to goods, services and facilities because of disability. They both allege that the condition of certain sidewalks in Midland constitutes a breach of the Code.

2The applicant is 84 years old. He has severe arthritis in both knees and knee replacement surgery is recommended; a heart valve replacement he had about 10 years ago is no longer working as desired. As a result of these conditions, the applicant is unstable when walking and finds himself fatigued and short of breath.

3The applicant’s first Application alleges that one day he was walking on a sidewalk outside 331 Midland Avenue in Midland and because of the condition of the sidewalk, he stumbled and fell on his hands. The second Application alleges that on a different occasion the applicant was driving along Hugel Avenue in Midland when he spotted something lying on the sidewalk and got out to investigate. The applicant states he almost fell into the road from the sidewalk because where the sidewalk slopes downwards to meet the road at driveways and crossings, the degree of the slope is too steep. The Applications allege that the condition of these sidewalks constitutes discrimination on the part of the respondent because they are not safe for the applicant to walk on as a result of his disability.

4By way of Interim Decision, 2013 HRTO 904, issued on May 24, 2013, the Tribunal granted the respondent’s request for a summary hearing.

5Rule 19A of the Tribunal’s Rules of Practice deals with summary hearings. It came into effect on July 1, 2010, and reads as follows:

19A.1 The Tribunal may hold a summary hearing on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

6The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part. The test that is applied at a summary hearing is: is there no reasonable prospect that the Application will succeed? At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary.

7The summary hearing was held via teleconference on August 2, 2013.

ANALYSIS

8Pursuant to the Municipal Act, S.O. 2001, c. 25, all municipalities in Ontario are required to inspect their sidewalks once a year for surface discontinuities. The town of Midland has about 6,783 meters of sidewalk. Every year it inspects its sidewalks, draws up a schedule for repairs, and dedicates funds to that purpose. When budgetary constraints mean that a municipality cannot meets its obligations to do repairs, it has the option of removing existing sidewalks rather than repairing them.

9With respect to the slope where sidewalks meet driveways or pedestrian crossings, the Ontario Provincial Standards for Roads and Public Works produces a comprehensive set of standard specifications to improve the administration of road building. Municipalities typically contract with construction companies to build new roads and sidewalks that conform to OPS standards, and any deficiencies in new sidewalks or roads identified during the warranty period must be addressed by the contractor.

10Section 1 of the Code says:

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.

11There is no dispute that the provision and maintenance of roads and sidewalks is a service the respondent provides to residents and visitors to Midland.

12The respondent does dispute however that the applicant has a disability. This issue also arose in applications involving the applicant and the town of Penetanguishene in which some of the allegations involved the state of sidewalks in that municipality.

13In Freitag v. Penetanguishene (Town), 2013 HRTO 554, the Tribunal dismissed all of the applicant’s allegations with respect to sidewalks on the basis that there was no reasonable prospect of success. The Tribunal found that the medical evidence provided did not establish that the applicant had a disability that resulted in restrictions or limitations related to his use of the sidewalks in question. In the Interim Decision granting the respondent’s request for a summary hearing with respect to these Applications, the Tribunal ordered the applicant to file with the Tribunal all of the medical evidence he intends to rely on with respect to these Applications. The applicant then filed a letter from his doctor dated May 27, 2013. It says:

[The applicant] suffers from severe Arthritis in both knees and it has been recommended by an Orthopedic Surgeon that he should have a knee replacement.

[He] also had a Heart Valve replacement 10 years ago and unfortunately the replacement valve is no longer working as desired. … As a result of his current situation, [the applicant] is unstable when walking and finds himself continuously fatigued and short of breath.

14The applicant filed no other medical evidence.

15The Application with respect to Midland Avenue says: “the sidewalk is badly broken-up [with a] variation in height [of] about 1 inch”. The Application with respect to Hugel Avenue says the slope between the sidewalk and the road is 16.6% and according to OPS guidelines is not supposed to exceed 4%. The applicant’s doctor’s letter does not say the applicant’s medical condition prevents him from being able to walk on a sidewalk where there is a variation in height of 1 inch, nor does it say he cannot navigate a sidewalk to roadway downward slope of 16.6%. As a result, the applicant’s medical evidence does not support the contention that he has restrictions or limitations caused by his arthritis or his heart condition that would mean he cannot safely navigate the sidewalks as he describes them. As a result, it would appear that the Applications have no reasonable prospect of success.

16That being said, for the purpose of fully addressing the issues that arise in the Applications, I am prepared to assume that the applicant’s physician may testify at a hearing that the applicant’s disabilities mean he cannot walk safely on a surface with a 1 inch variation or on a downslope of 16.6%. But even if I assume that to be the case, I am satisfied that these Applications have no reasonable prospect of success given the reasons set out below.

17The essence of the applicant’s complaint is that if sidewalks are not as well maintained as they could be, then people who have mobility difficulties may be adversely affected by the state of the sidewalks and that negative impact constitutes discrimination under the Code.

18Section 11 of the Code says:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

19In other words, the applicant argues that pursuant to s. 11(1) the state of the sidewalks constitutes a factor that is not discrimination on a prohibited ground in and of itself, but results in some disabled users being unable to use the sidewalks safely. Section 11 contains an internal defense to such a claim; namely, the municipality can argue that the state of any given sidewalk on any particular day is reasonable and bona fide as sidewalks are inspected annually and repaired according to a schedule that is developed following the annual inspection. S. 11(2) says that the Tribunal cannot find a factor reasonable and bona fide without first determining if it is possible to accommodate the needs of the affected individual.

20Accommodation is a collaborative process that occurs between a person who needs some accommodations to use a service and the service provider. This means that a disabled person who needs accommodations to use a service should inform the service provider of that fact. It is only where the service provider is aware, or reasonably ought to be aware, that the applicant needs disability related accommodations to access a service that the service provider’s failure to act is a breach of the Code.

21During the course of the summary hearing I used the example of an individual who relies on a mobility aid to get in and out of the home, and finds him or herself essentially trapped when work on the sidewalk outside the house impedes access to the road. In that scenario the individual would be expected to contact the municipality to alert it to the problem; and the municipality would then be expected to take the necessary steps to ensure the person could get out and about. In this scenario it is perhaps more obvious that the individual seeking accommodation of disability related needs has a positive obligation to make sure they are known by the service provider.

22With respect to the state of Midland Avenue, it would appear that as soon as the respondent was aware of the problem it examined the area outside 331 Midland Avenue, and determined that although it did not believe it was in breach of the Municipal Act it would fix the area in question anyway, which it did. As the remedy requested in the Application is that the sidewalk be repaired the Tribunal issued a Case Assessment Direction on September 25, 2012, asking the applicant to file a Reply if he wished to proceed further with the Application. The applicant replied that the repaired area was not the area of the sidewalk in question. However, during the summary hearing the applicant was specifically asked to confirm that the area repaired was at 331 Midland Avenue and he was now complaining about nearby spots, to which he replied “correct”. Just prior to the summary hearing the applicant filed with the Tribunal photographs of portions of sidewalk on a completely different street. When asked what the applicant wanted to achieve, the applicant replied he wants sidewalks repaired in general, and where they need repair he wants the municipality to post signs warning of “danger”. He then stated his goal in filing the Applications was to enforce better compliance with the Municipal Act.

23With respect to Hugel Avenue, the applicant and the respondent exchanged considerable correspondence about the applicant’s opinion that the cross slope on Hugel Avenue was not in compliance with OPS standards. However, at no point in that correspondence does the applicant say anything about being disabled or needing accommodation to safely walk on Hugel Avenue. The applicant also does not deny that the respondent set up a meeting for the applicant to point out the problem to it, and the applicant failed to attend the meeting. The position of the respondent is that it still has no idea what part of the sidewalk on Hugel Avenue is problematic for the applicant and if it knew it would address any deficiencies as the construction is still under warranty. The applicant also did not rebut the observation of the respondent that his Application with respect to Hugel Avenue specifically states that in his view it is unsafe for everyone, implying the Application has little to do with disability but is more about enforcing the applicant’s views of what the OPS standards mean.

24As a result of the above, it would appear that the applicant did not enter into the collaborative process with the respondent that the Code envisions. So even if the applicant were able to establish he has a disability which restricts his ability to walk safely on Hugel or Midland Avenues, his Applications would disclose no reasonable prospect of success because he did not provide the town with the information it needed to address any accommodation needs he theoretically may have. He did not ask for accommodation of a disability and the respondent could not reasonably have known that he needed accommodation.

25I would observe that it is not within the Tribunal’s jurisdiction to enforce municipal or other standards. Similar observations have been made by the Tribunal in numerous previous applications filed by the applicant. In Freitag v. Penetanguishene, above, the Tribunal specifically states at para. 9 that the Tribunal does not have the jurisdiction to enforce the Building Code; and at paras. 123 and 125 it makes the same observation with respect to the Fire Code. Similarly, in para. 16 of Freitag v. Mid/Mall Shopping Centre Limited, 2012 HRTO 1156, the Tribunal states it is not within the Tribunal’s mandate to address Building Code matters. In Freitag v. Penetanguishene, above, the Tribunal concluded at para. 135: “My hope is that the applicants, and Mr. Freitag in particular, will find a way to channel his efforts more positively and to work collaboratively with the Town…” I would echo that view.

DECISION

26The Applications are dismissed.