HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lawrence Del Grande
Applicant
-and-
2057161 Ontario Inc. o/a Toronto Pathways, Dale Smith and Gordon MacKay
Respondents
DECISION
Adjudicator: Maureen Doyle
Indexed as: Del Grande v. 2057161 Ontario Inc.
APPEARANCES
Lawrence del grande, Applicant
Kate Sellar, Counsel
2057161 Ontario Inc. o/a Toronto Pathways, Dale smith and Gordon MacKay, Respondents
No one appearing
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 services because of disability.
2By way of remedy, the applicant seeks monetary compensation for the cost of the program of services he purchased from the respondent 2057161 Ontario Inc. o/a Toronto Pathways (“Toronto Pathways”) and an additional $11,000.00 as compensation for injury to dignity, feelings and self-respect. Further, he requests that the Tribunal order the respondent Toronto Pathways to develop a human rights policy for the accommodation of their customers with disabilities and that all employees and managers be trained regarding the duty to accommodate. Finally, he seeks an order requiring the respondent Toronto Pathways to post a “Code Card” from the Ontario Human Rights Commission in the waiting room at its place of business.
3Mr. Dale Smith filed a joint Response, indicating he was filing on behalf of all the respondents, in which they deny having discriminated against the applicant contrary to the Code. In the Response, Mr. Smith identified himself as “president” of Toronto Pathways.
4The applicant filed a Reply with the Tribunal on November 9, 2012, and confirmed service by email on Mr. Smith, who had filed the Response on behalf of all respondents.
5The matter proceeded to mediation on March 20, 2013. At the mediation, all parties, including Gordon MacKay, signed the required Confidentiality Agreement, which bears the title of proceedings identifying Gordon MacKay as one of the respondents.
6The matter was not settled at mediation, and it continued in the Tribunal’s process and was scheduled for a hearing.
7On March 28, 2013, the Tribunal issued a Notice of Confirmation of Hearing, sending it to all parties, and in particular sending it to the respondents at the only address provided by them, being the address of the corporate respondent Toronto Pathways. The Notice was not returned as undeliverable. The Notice advised the parties that the matter was scheduled to be heard on October 17, 2013, and provided the start time and address for the hearing.
8The hearing was convened on October 17, 2013. The respondents were not in attendance, and as is the practice of the Tribunal, the matter was held down for thirty minutes, until 10 a.m.
9The Tribunal received no communication from the respondents regarding their failure to attend the hearing.
10In the above-noted March 28, 2013 Notice of Hearing, the Tribunal had advised as follows:
If you fail to attend the hearing after receiving proper notice the HRTO may:
proceed in your absence;
determine you are not entitled to further notice of the proceedings;
determine you are not entitled to present evidence or make submissions to the HRTO;
decide the Application based solely on the materials before the HRTO;
dismiss the Application as abandoned if the applicant fails to attend, and;
take any other action the HRTO considers appropriate.
11The parties were to have disclosed documentation required under Rule 16.1 of the Tribunal’s Rules of Procedure by April 18, 2013 and were to have filed documentation required by Rules 16.2, 16.3, 17.1 and 17.2 by September 3, 2013. The applicant attempted to deliver documentation to the respondents at the previously provided address, but learned that it was no longer current. He advised the Tribunal that he was making disclosure of documentation to an alternate address found for Dale Smith as part of a corporate search for Toronto Pathways. He requested an order from the Tribunal that Mr. Smith provide the last known address for Gordon MacKay.
12On October 7, 2013, the Tribunal issued a Case Assessment Direction (CAD) ordering the respondent Mr. Smith to provide the Tribunal and the applicant with the last known address for Dale Smith. The CAD was sent to the respondents by mail at the address supplied in the Response, and was also sent via email to the email address supplied by Dale Smith. The CAD also included the following:
As the applicant has provided disclosure in accordance with Rule 16.1, but the respondents have not provided any disclosure to date, it is prudent to remind the respondents that an application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to participate in a Tribunal proceeding may lead to orders against respondents without their participation.
13Neither the mailed CAD nor the CAD sent by way of email, was returned as undeliverable. The respondent Dale Smith did not supply any contact information for Gordon MacKay, nor did he communicate with the Tribunal in any way.
14On October 8, 2013, , the Tribunal issued a Case Assessment Direction (CAD) ordering the respondent Mr. Smith to provide the Tribunal and the applicant with the last known address for Toronto Pathways. The CAD was sent to the respondents by mail at the address supplied in the Response, and was also sent via email to the email address supplied by Dale Smith. The CAD also included the following:
Additionally, the reminder issued to the respondents in the October 7, 2013 CAD is for the benefit of all named respondents, both individual and corporate, and is re-stated herein for the parties’ convenience: an Application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to participate in a Tribunal proceeding may lead to orders against respondents without their participation.
15Neither the mailed CAD nor the CAD sent by way of email, was returned as undeliverable. The respondent Dale Smith did not supply any contact information for Toronto Pathways, nor did he communicate with the Tribunal in any way.
16Rule 1.13 of the Tribunal’s Rules of Procedure states as follows:
A party must notify the Tribunal and all parties and their representatives, in writing, of any change in their contact information, as soon as possible.
17None of the respondents has ever notified the Tribunal of any change to their contact information.
18The Tribunal provided the Notice of Hearing to the respondents at the address provided by Dale Smith. Further, in CADs, the Tribunal twice alerted the respondents to their responsibility to file documents and to participate in the hearing, at the mailing address and email address provided by Dale Smith.
19At the hearing on October 17, 2013, counsel for the applicant submitted that the respondents had notice of the Application and also had Notice of the Hearing. With respect to the individual respondent Gordon MacKay, she took the position that though he had had only ever received such notice at the Toronto Pathways address originally supplied by Dale Smith, the Response had been filed on behalf of all respondents and that in its “narrative” section, it includes a section which commences “Mr. MacKay reports the following…”.
20In all of the circumstances described above, I am satisfied that the respondents had notice of the Application and of the Hearing.
21The hearing proceeded in the absence of the respondents.
BACKGROUND FACTS
22The applicant is legally blind. He has only peripheral vision and he requires assistive technology in order to be able to read. In particular, he has computer software programs which enable him to scan printed material and then have the computer read it aloud to him. The computer software programs are also capable of reading emails aloud to him, as well as some material available on the internet. The software has certain limitations, however, with respect to the kind of written materials it can accurately scan and then read aloud. In particular, it does not accurately scan and read PDF files, material which has been photographed, handwritten material, material from glossy pages, or material where there are pictures included on the pages. Other than emails, the material it is best suited for are “Word” documents, ideally on plain white paper.
23The applicant has been self-employed as an entrepreneur in the past and he testified that generally, he focuses his energy on ways in which he can create and exploit opportunities for himself, as he has not had a great deal of luck relying on other people to provide him with employment. He attributes this to a combination of his age and his disability. Nonetheless, he testified that at some point in 2011, he posted his resumé on two large job search websites.
24The applicant testified that in early 2012, he received a telephone call from someone at Toronto Pathways, inviting him in for an interview, and indicating that they thought they could assist him in his search for employment. He agreed and attended a meeting with a salesperson from Toronto Pathways. He testified that at that first meeting, he expressed doubt about their ability to assist him in finding employment, due to his disability. He testified that they “seemed to think they had experience with such things” and invited him back for a second meeting. They advised him to return with a friend or family member and that they could all discuss the possibility of having him sign up for their employment counselling service.
25On his return visit, he arrived with his girlfriend and spoke with the salesperson he had met with initially. He testified that the salesperson explained the service provided by Toronto Pathway and indicated that there was an extremely good chance they could assist him in finding employment. The cost of the services would be $3955.00. He testified that the salesperson left the room, without reading the contract aloud to him, and told him to discuss it with his girlfriend. He testified that he was reluctant to spend so much money and that when the salesperson return to the room, the applicant asked to speak with the owner of the company. He was introduced to Dale Smith and he testified that he explained to Mr. Smith that he would require the program materials in the format of “Word” documents in order to be able to access them using his computer software, due to his disability. He testified that Mr. Smith indicated that there would not be a problem as his company was used to dealing with people with visual impairments. He signed a contract with the corporate respondent and paid for the counselling service offered.
26It was agreed that the applicant would meet weekly with a representative of Toronto Pathways, Gordon MacKay, for employment counselling and “coaching” and to receive job “leads”. In his Application, the applicant referred to Mr. MacKay as an “employment coach”. The applicant testified that at their first meeting, Mr. MacKay gave him a written assignment to complete before their next meeting. The first assignment was to complete a series of questions found on Toronto Pathway’s website. The applicant testified that he had difficulty “saving” his answers, but did not indicate that he had any difficulty accessing the material due to his disability. He testified that when he went in for his next meeting, however, Mr. MacKay gave him a binder of materials containing future assignments and other background material. He testified that he expressed some doubt to Mr. MacKay about whether his computer software programs would be able to scan and read the material accurately, as the pages were glossy and contained pictures and other elements he knew would not be compatible with his software. He testified that nonetheless, he agreed to “give it a try”.
27He testified that he was in fact unable to scan the materials and assignment from the binder, and that he had to complete his assignment using a variety of high-power hand-held magnifying glasses, a process which was both difficult and time-consuming. He testified that he experienced headaches after working in this way. He testified that at the following meeting with Mr. MacKay he advised him of the difficulties he had experienced and requested that the materials be provided to him in “Word” format. He testified that Mr. MacKay simply told him he was doing a good job and that he admired the applicant’s enthusiasm and perseverance, but that no accommodation was forthcoming.
28The applicant testified that he attended several meetings with Mr. MacKay, until some point in early March 2012, though he could not recall the exact date of their meetings. He testified that occasionally, Mr. MacKay sent him emails which summarized the weekly assignment he was to complete. These emails were accessible to him with the assistance of his computer software, but they contained only summaries of the assignments and he continued to miss out on the other background material contained in the binder. He testified that “towards the end” of their series of meetings, Mr. MacKay even stopped sending the emails to him. He testified that when Mr. MacKay did not send emails, he asked Mr. MacKay what had happened, and Mr. MacKay simply indicated that he got “too busy” during the week. Generally, the applicant testified that whenever he raised the issue of providing “Word” documents to him, Mr. MacKay simply “brushed off” his concerns, variously telling him to get someone to help him read the documents and reassuring him he was doing well without the “Word” documents. He testified that he continued to try his best to read the documents as provided, with the use of various hand-held magnifying glasses. He testified that this was a slow, difficult process, and that he suffered headaches as a result of working in this way.
29The applicant also testified that at one meeting with Mr. MacKay, he dropped his cane and Mr. MacKay said “Oh that stupid cane”. He testified that normally such a remark would not bother him, but that he reflected on the fact he felt it was an indication of frustration on Mr. MacKay’s part, as he realized that “he could not help [me] out”. He testified that the remark did not make him think highly of Mr. MacKay nor did he feel good. He testified that he considers his cane to be of benefit to him and to others, as it signals to them that he has a visual impairment. He testified that most people are very respectful of his cane. I note at this point that though it does not appear that the applicant alleges this was a separate incident of discrimination, I would not have found that this one comment, which the applicant himself did not appear to consider particularly egregious, would rise to the level of harassment or discrimination contrary to the Code.
30The applicant testified that around early March, 2012, he had become frustrated with the lack of accommodation and began to believe that Toronto Pathways was not going to provide him with the accommodation and services he required. He testified that by this time, he had not even reached the half-way point in the Toronto Pathways program. Also around this time also, a friend of his advised him to watch a CBC show about Toronto Pathways. He testified that he watched the show and became more convinced that this company was not there to help him as a person with a visual impairment, but was simply making promises to vulnerable people.
31After viewing the television program, the applicant met with Dale Smith. He had some difficulty recalling the exact discussion, but he testified that he believed he told Mr. Smith that he was having a difficult time getting through the Toronto Pathways program without the promised accommodations, and that he had seen a television program which he felt had not made the company look good. He testified that Mr. Smith had insisted that he wanted to continue working with the applicant. He testified that Mr. Smith said nothing about the requested accommodations. When the applicant requested a refund of the $3955 fee he had paid, Mr. Smith initially refused, but then said he would think about it. The applicant testified that a few days later, Mr. Smith called him and advised him that he would not be giving the applicant a refund. In his Application, he indicates that Dale Smith first got back to him on March 9, 2012, leaving him a voice message, and that they subsequently spoke and Mr. Smith refused the refund. The applicant testified that the only times he spoke with Mr. Smith before the telephone call when he was refused a refund, were the meeting when he signed the contract for services on January 18, 2012 and the final meeting when he told Mr. Smith of his dissatisfaction and made his request for a refund.
32The applicant testified that he severed his ties with the respondents at that point. He testified that the experience had diminished his confidence, as he had begun to believe that perhaps there was a possibility of employment “out there” for him, but was ultimately disappointed by the respondents’ actions. He testified that paying the program fee also represented a financial set-back for him.
33The applicant seeks a finding that the respondents are liable jointly and severally for a violation of the Code. He submits that when Gordon MacKay failed to provide the requested “Word” documents, pursuant to the Code, whatever Mr. MacKay failed to do is the responsibility of his employer, Toronto Pathways. Further, he submits that Mr. MacKay played “such a central role” in the failure to accommodate, that he is also liable personally. He also submits that Dale Smith has held himself out as a directing mind of the organization, and that for all intents and purposes, pursuant to the organic theory of liability, anything Mr. Smith does or fails to do is something the organization has failed to do.
34The applicant submits that he severed his ties with the respondents because he felt he could not access the program on a level playing field, as he was not being accommodated. He submits that for a person not working full time, taking a course which was to help him locate employment and not being able to finish it due to a violation of the Code, was the same as getting fired. He also submits that the cumulative impact of his experience with the respondents as another instance confirming his belief that he cannot rely on others for employment, heightens the subjective impact of the respondents’ breach of the Code.
35By way of financial compensation, he seeks reimbursement of the cost of the respondent Toronto Pathways’ services, being $3955.00. Additionally, he seeks $11,000.00 by way of financial compensation for injury to dignity, feelings and self-worth. With respect to the appropriateness of the latter amount, the applicant relied upon Brown v. Trebas Institute Ontario Inc. 2008 HRTO 10 (“Brown”), Ouji v. APLUS Institute 2010 HRTO 1389 (“Ouji”), Arunachalam v. Best Buy Canada 2010 HRTO 1880 (“Arunachalam”), Bourdeau v. Kingston Bazar 2012 HRTO 393 (“Bourdeau”) and Gamache v. York University 2012 HRTO 2328 (“Gamache”).
36In their joint Response to the Application, the respondents agree that at the initial meeting, when the contract for services was signed, the applicant advised them about his computer software for reading. They do not mention whether the applicant requested documentation in “Word” format at that time. They dispute that the applicant expressed dissatisfaction to Mr. MacKay regarding the format of the written materials when he received the binder. They do allow, however, that the applicant did ask Mr. MacKay to provide the entire program material in “Word” document format. The Response states that Mr. MacKay “informed him that we didn’t have the material available in that form.” It asserts that Mr. MacKay did not “‘refuse’ to provide it”, but “told him that [I] would do whatever [I] could to make it easier for him, due to his limited vision”. The Response also notes that Mr. MacKay sent emails to the applicant on at least two occasions after their meeting, “to confirm his homework assignments so he could enlarge and read them on his computer”. The Response states that Mr. MacKay has “never done this for anyone else”. The Response also states that Mr. MacKay has no recollection of a “‘cane dropping’ incident”. The Response also states that at the final meeting with Mr. Smith, the applicant merely advised that he had lost faith in Toronto Pathways due to the television show, and sought a refund on that basis. Finally, the Response states that the applicant spoke with Mr. Smith on several occasions when he attended the premises of Toronto Pathways, but that he never expressed dissatisfaction with the services he was receiving. See my comments below at para. 40 with respect to the limited weight I give the assertions contained in the Response, in light of the fact that the respondents did not participate in the hearing and so did not confirm any of these assertions in evidence.
THE LAW
37The relevant provisions of the Code provide as follows:
- 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.
In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device
46.3(1)For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
DECISION
Weighing the evidence
38The applicant attended at the hearing and provided his evidence under oath. He made himself available for cross-examination and he answered several questions posed by me. The evidence provided by the applicant in his testimony is uncontradicted; however, the applicant still bears the onus of proving his allegations on a balance of probabilities. I found the applicant’s evidence to be coherent, essentially consistent with his Application, and I did not find him to be prone to exaggeration. Where he struggled with recalling some details, he was forthright in admitting his difficulty.
39The respondents chose not to participate in the hearing scheduled in this matter. At a hearing, the respondents have a clear means to explain and defend against human rights allegations through cross-examination of the applicant’s witnesses, presentation of their own evidence and in their submissions. The March 28, 2013 Notice of Hearing alerted the parties to the fact that if they did not attend the hearing, it may proceed in their absence and also that the Tribunal may determine that they were not entitled to present evidence or to make submissions.
40The respondents did not attend at the hearing, did not provide evidence under oath or affirmation and were not subject to cross-examination with respect to the assertions they made in their Response. Accordingly, while I have reviewed the assertions contained in the Response I give them little to no evidentiary weight and, in particular, where the respondents’ assertions differ from the applicant’s evidence, I prefer the applicant’s evidence. In some cases, as noted below, the assertions contained in the respondents’ material would have amounted to admissions against their own interest had they been confirmed in testimony or in affidavit form.
Did the Respondents Discriminate Against the Applicant on the Basis of Disability?
41The applicant asserts that he advised the respondents of his disability and of his need for accommodation in order to access printed materials. The respondents, having not testified, are deemed to have accepted the fact that the applicant made them aware of his disability. I note that even in the material they filed prior to the hearing (i.e. their Response form) they did not dispute the fact that he requested accommodation in order to access printed materials. More particularly, they conceded in their Response that the applicant requested documents in “Word” format. They also acknowledge, or concede, in this material that they did not provide him with this accommodation, allowing that they “didn’t have the material available in that form”. They did not, in these unproven assertions, indicate that they made any efforts to obtain or produce the documents in “Word” format, nor did this material explain, or even assert, that it would have caused them “undue hardship” to do so. As a further indication that they knew of his need for accommodation, they state that at least twice, Mr. MacKay sent an email to the applicant with his homework assignments “so that he could enlarge and read them on his computer”. The respondents indicated in their material that this had never been done for anyone else, and it appears they intended to hold it up as an example of having accommodated the applicant.
42While accommodation need not be perfect, and while a respondent may be able to provide suitable accommodation in a manner other than that described by the applicant, the respondents’ admission regarding having sent the assignments by email on at least two occasions confirms the fact that they failed to accommodate the applicant - it underscores the fact that they were aware of his need for accommodation with regard to the printed material, and it highlights the fact that they did not provide all of the written material for him in an accessible form, but rather, on what can only be described as a “spotty” basis. The applicant has given evidence about the summary nature of the emails, and about the difficulty he had in attempting to access the written assignments and other written material which were not emailed to him. He has also given evidence regarding the fact that Mr. MacKay was aware of the fact that he was experiencing such difficulties. I accept the applicant’s evidence in this regard.
43The applicant has a disability. He requested accommodation from the respondents in order to be able to access fully the service provided, which included written materials. As described above, the respondents made no meaningful attempt to meet the applicant’s need for accommodation. There is no evidence before me to indicate that accommodating the applicant’s disability would have resulted in undue hardship for the respondents. The respondents failed to accommodate the applicant’s disability when it failed to take steps to eliminate the barriers which prevented the applicant from accessing the program’s written materials and accordingly have breached the applicant’s Code right to equal treatment with respect to services.
44I also note that the applicant testified that the respondent Gordon MacKay said “oh that stupid cane” when the applicant dropped his cane at a meeting one day. In submissions to the Tribunal, the applicant’s position has been that the respondents failed to provide him with the accommodations necessary for him to have equal access to the services of Toronto Pathways. Further, the remedy he seeks is in relation to this allegation. He does not appear to allege that this comment was a separate incident of discrimination and in fact he indicated that the comment would not normally bother him. Rather, in testifying about it, he stated that he believed it was an indication that the respondent Gordon MacKay felt frustrated about the fact that he was not able to provide the required accommodation. Accordingly, I make findings with respect to the allegation of a failure to accommodate only.
45It was Toronto Pathways who provided service to the applicant. It was the responsibility of Toronto Pathways to provide accommodation to the applicant for his disability, in accordance with his right to equal treatment with respect to services without discrimination. The respondent Gordon MacKay appears to have been an employee of the respondent Toronto Pathways. There is no evidence that Gordon MacKay interfered with or prevented the respondent Toronto Pathways from providing the required accommodation. In fact, according to the applicant’s evidence, Gordon MacKay appeared to have been frustrated by an inability to provide the applicant with the necessary accommodation. I also note that there is no evidence before me to indicate that the respondent Toronto Pathways, provided any training to its employees regarding the Code. There is no evidence before me to indicate that Gordon MacKay was in a position to provide the appropriate accommodation to the applicant. It appears that Gordon MacKay was an employee acting in the course of his employment. While the fact that the corporate respondent may be liable for the conduct of its employees does not insulate employees from personal liability, I find that for all these reasons, it is not appropriate to find Gordon MacKay personally liable for the failure to provide accommodation to the applicant. I do find, however, that the corporate respondent Toronto Pathways is liable for any discrimination in the provision of services on the basis of disability under s. 1 of the Code by Gordon MacKay, because of the vicarious liability provisions at s. 46.3 of the Code.
46In the Response, Dale Smith identified himself as the “president” of Toronto Pathways and was in fact introduced to the applicant as its owner. The applicant made his need for accommodation known to Mr. Smith. As a directing mind of Toronto Pathways, Dale Smith was in a position to respond appropriately to the applicant’s request for accommodation. He did not do so. He neither provided the “Word” documents requested, nor did he engage in any discussion with the applicant with a view to determining the feasibility of any other accommodation measure. He did nothing in the face of the applicant’s request. He played a central role in the failure to accommodate. I find that given his position as a directing mind of Toronto Pathways, his failure to respond appropriately to the request for accommodation supports a finding that he violated the Code. As noted above the fact that the corporate respondent may be liable for the conduct of its employees does not insulate employees from personal liability. With respect to Dale Smith, I find that for the reasons above, it is appropriate to find him personally liable for the failure to provide accommodation to the applicant.
47There is no indication that the corporate respondent Toronto Pathways assumes responsibility for any remedial orders the Tribunal may make in this matter. While a corporate respondent has also been named in this matter, given the respondents’ failure to participate in the hearing, I am concerned that there is a real and increased risk that if I make an order as against one respondent only, there may be no remedy actually provided to the applicant. In these circumstances, I find that it is appropriate for both the individual respondent Dale Smith and the corporate respondent Toronto Pathways to be found jointly and several liable and to be ordered to pay compensation to the applicant.
REMEDY
48Section 45.2(1) of the Code provides that where the Tribunal determines that a party has infringed a right under Part 1, it may make the following orders:
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. 2006, c. 30, s. 5.
Compensation for the Cost of the Services
49The applicant testified and I accept that he severed his relationship with the respondents because he was unable to access the written materials and he had become convinced that the necessary accommodation was not forthcoming. His efforts to use the services of Toronto Pathways were thwarted by the fact that he did not receive the accommodation he required for his disability. In the circumstances, I am persuaded that it is appropriate to order that the respondents Toronto Pathways and Dale Smith jointly and severally pay to the applicant the $3995.00 he spent on services he was unable to access. In determining that the applicant should be compensated for the full amount of the contract I have considered that the applicant participated in the course for a period of time before the services contemplated in the contract were essentially frustrated by the ongoing failure to accommodate. However, in the absence of any evidence from the respondents with respect to partial benefits or services received by the applicant and the fact that the full final services contemplated under the agreement were not delivered, I find it appropriate to order the full amount of the initial agreement for services be repaid.
Compensation for Injury to Dignity, Feelings and Self-Respect
50The applicant seeks $11,000.00 in compensation for injury to dignity, feelings and self-respect.
51In Arunchalam v. Best Buy, 2010 HRTO 1880 (“Arunchalam”), at paragraphs 52 to 54, the Tribunal summarized some of the considerations relevant to an assessment of damages to be awarded under s. 45.2 of the Code:
I turn now to the relevant factors in determining the damages in a particular case. 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: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para.16.
The first criterion recognizes that injury to dignity, feelings and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
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. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 532005, at paras. 34-38
52The non-exhaustive list of relevant considerations discussed in Sanford v. Koop are: humiliation experienced by the applicant; hurt feelings; loss of self-respect, dignity, self-esteem, confidence; the experience of victimization and; the seriousness, frequency and duration of the offensive treatment.
53Counsel for the applicant submitted that there is an “unfortunate tendency” to see termination from employment as the objective “high water mark”. She submitted that here the applicant severed his ties as he felt he could not access the services on an equal playing field with others. She submitted that for a person not working full time, taking a course to help you locate full time employment and not being able to finish it, has the same impact as being dismissed from employment. She submits that the objective component of not receiving proper accommodation in the area of services, is often under-rated, and she submits that in this case, an award of $11,000.00 is appropriate. She relied upon Brown v. Trebas Institute Ontario Inc. 2008 HRTO 10 (“Brown”), Ouji v. APLUS Institute 2010 HRTO 1389 (“Ouji”), Arunachalam v. Best Buy Canada 2010 HRTO 1880 (“Arunachalam”), Bourdeau v. Kingston Bazar (“Bourdeau”) and Gamache v. York University 2012 HRTO 2328 (“Gamache”) and Gamache v. York University 2013 HRTO 693 (“Gamache, remedy”) .
54In Brown, the applicant was legally blind. He required specially outfitted computer equipment and written course materials in a different format, in order to be able to participate in the MBA program offered by the respondent, a post-secondary private career college. The Tribunal found that the respondent discriminated against the applicant because it failed to take the appropriate steps to put the applicant’s required accommodation in place for time for him to enrol in the MBA program in April 2001 and it denied his request to defer his enrolment date in order to provide additional time to arrange the accommodation. The Tribunal accepted that the applicant was hurt, frustrated and angry that he could not enrol in the program, and at paragraph 73 stated “Denying an individual like Brown, who has a disability, the right to improve his education and opportunity for advancement must be viewed seriously.” The Tribunal ordered the respondent college to pay the applicant “$12,5000 in general damages”, with interest.
55In Ouji, the applicant was enrolled in a program to become a dental hygienist, but she did not do well academically in the program offered by the respondent, a private college. The Tribunal found that the respondent had discriminated against her when it failed to accommodate her disability. In particular, it found that the respondent “breached the procedural component of the duty to accommodate” and at paragraph 32, it states “the respondent did not make sufficient efforts to ensure that the applicant was aware of her right to accommodation and to inquire into her need for accommodation so as to determine what, if any accommodation was appropriate”. At paragraph 29, however, it found that the evidence did “not establish that there was a breach of the substantive component of the duty”. The Tribunal noted that the applicant “remained unhappy and frustrated at the time of the hearing”. The Tribunal ordered the respondent to pay $7,500.00, with interest, to the applicant in monetary compensation for the injury to her dignity, feelings and self-respect.
56In Bourdeau, the applicant was legally blind. She was with her husband at the respondent grocery store, when a representative of the store approached them, and told them to leave because her service dog was scaring the customers. When the applicant’s husband attempted to explain that the applicant and her working dog had a right to be present, the respondent called him “crazy”. The Tribunal found that the applicant experienced “considerable distress and loss of dignity” and noted that it had been a public embarrassment and that the person who ejected them from the store had been abusive. The Tribunal ordered the respondent to pay to the applicant $15,000.00, with interest, by way of compensation for having violated her inherent right to be free from discrimination and of injury to her dignity.
57In Gamache, the applicant, who was legally blind in one eye, had been enrolled in the respondent university’s program in the Faculty of Education, in order to become a teacher. She was ultimately unsuccessful in the program and at paragraph 176, the Tribunal found that the respondents had “provided rational and non-discriminatory explanations to support the applicant’s inability to continue in the consecutive education program”. The Tribunal did find, however, that the respondent university had delayed in providing the applicant with accommodation in the form of textual materials in an accessible format, and that this was discrimination on the basis of disability. The respondent university had not supplied the accommodation until approximately two months into the academic year. In the subsequent decision regarding remedy, Gamache Remedy, the Tribunal distinguished the situation from the one in Brown, finding that the applicant was not prevented from attending the program and though there was a delay, the accommodation was eventually provided. Further, the Tribunal found that the respondent university’s failure to provide the accommodation earlier “did not materially impact her failure to successfully complete the program.” The Tribunal indicated that it would have been appropriate to award $5,000.00 in compensation to the applicant for injury to her dignity feelings and self-respect, but ultimately reduced the award to $3,500.00, as it found that she had attempted to mislead the Tribunal.
58In a vein similar to the cases involving educational services cited by the applicant, is the decision in Hickey v. Everest Colleges Canada 2009 HRTO 796. In that case, the applicant was enrolled in a chairside dental assistant program offered by the respondent college. One component of the program was a practicum in a dentist’s office, and for this she required the accommodation of shorter shifts due to her physical restrictions. The Tribunal found that there was no evidence that the respondents ever investigated or attempted to work with the applicant on finding accommodation in her practicum. During her practicum, she twice “refused to sit chairside” and perform other duties, and she submitted that she would have been able to “sit chairside” and perform the other duties had she been given the accommodation of shorter shifts. The Tribunal found that the refusal to sit chairside and perform other tasks was influential in the dental office’s decision to give her a failing grade for her practicum. The respondent college issued an “incomplete”. At paragraph 34, the Tribunal found that the respondents had failed to fully explore all the options to accommodate her during her practicum, and accordingly found that they had failed to accommodate her disability. The Tribunal stated at paragraph 41 that “the respondents did not adequately investigate and consider accommodations that may have permitted the applicant to remain in the Program”. The Tribunal found that the respondents had had adequate time to address the accommodation options, but left the applicant to fend for herself. It noted that the respondents had agreed that the applicant had experienced emotional distress as a result of the failed practicum, and that the applicant had testified that she was frustrated that the respondents were not helping her and was extremely upset after failing the practicum. The Tribunal ordered the respondent college to pay $3,000.00 to the applicant “for loss arising out of the Code”.
59While previous Tribunal decisions involving educational institutions’ failure to accommodate disabilities may be of some assistance in determining the appropriate remedy, it must be recalled that the corporate respondent in this Application was not an educational institution. The service which the applicant was unable to access was not formal education which leads to accreditation and eligibility for certain kinds of employment. The applicant in this matter was not blocked from pursuing an education which would improve his qualifications and opportunity for advancement. Though there may have been information provided about doing job searches, the service offered by this corporate respondent may be better described as coaching. Indeed, in his Application, the applicant called Gordon MacKay an “employment coach”.
60The fact that the applicant did not receive the written material in an accessible form did mean, however, that he did not receive equal right to equal treatment with respect to the coaching services, and accordingly, was discriminated against in the provision of those services. I am not persuaded that the applicant’s inability to complete the program offered by Toronto Pathways is of the same objective seriousness as being dismissed from employment, which is frequently marked by a negative impact on the individual’s sense of self-worth, as well as social, familial and financial life. On the basis of the evidence before me, Dale Smith and Toronto Pathways misled the applicant with respect to the assistance and accommodation it would provide and convinced him to invest his time and part with a significant sum of money to purchase inaccessible services. The services offered were in the nature of “coaching” services. Other than Gordon MacKay’s occasional emailed summary of assignments, there is no evidence that the respondents ever intended to provide the applicant with the accommodation he requested from the beginning. Their interaction lasted a little more than one month.
61The applicant gave evidence in which he described the disability-related vulnerability he feels as a job-seeker, and his resulting lack of faith in other people to create opportunities for him. He also gave evidence, however, that prior to his dealings with the respondents he had filed his resumé with two large job search websites. In this way, it would appear that he had some hope of becoming employed by others. He gave evidence about how, after speaking with Dale Smith, he was hopeful that the respondents may indeed be able to help him access job opportunities. He did not lose a job due to the respondent’s actions, but he testified that his experience with them did set his confidence back and that it was very discouraging. He attended at several coaching sessions, over the course of a little more than one month. He endured headaches in his attempt to use the written materials in the unaccommodated format, and he experienced the frustration of seeing the lack of commitment to provide him with the accommodation he required. I accept that the reason he discontinued his relationship with the respondents was the fact that he had not been accommodated for his disability.
62In considering the above-noted objective and subjective components, I find that it is appropriate to order the respondents Dale Smith and Toronto Pathways, jointly and severally, to pay $5,000.00 to the applicant by way of compensation for injury to dignity, feelings and self-worth.
Future Compliance Remedies
63In his Application, the applicant also sought an order for future compliance, or public interest remedies. Throughout the events complained of in this Application and through their Response and failure to participate in the hearing process, the respondents have displayed a poor understanding of their obligations and the rights of their clients under the Code. Accordingly, I find that it is appropriate to grant an order to promote future compliance. In particular, I find that it is appropriate to order Toronto Pathways to develop a Human Rights Policy, to ensure that its employees and managers receive training with respect to human rights, and that it post a “Code card” at its place of business.
ORDERS
64The Tribunal directs as follows:
The respondents Dale Smith and Toronto Pathways are ordered jointly and severally to pay to the applicant the amount of $3995.00, being the amount the applicant paid for the services of Toronto Pathways, together with prejudgment interest from March 9, 2012, calculated at 1.3%, in accordance with the Courts of Justice Act. Post-judgment interest shall be payable commencing 30 days from the date of this Decision calculated at the rate of 3%.
By way of compensation for injury to the applicant’s dignity, feelings and self-respect, the respondents Dale Smith and Toronto Pathways are ordered jointly and severally to pay to the applicant compensation in the amount of $5,000.00, together with prejudgment interest from March 9, 2012, calculated at 1.3%, in accordance with the Courts of Justice Act. Post-judgment interest calculated at 3% shall be payable commencing 30 days from the date of this Decision.
The respondent Toronto Pathways is ordered to engage the services of an individual with expertise in the area of human rights and shall develop a human rights policy which shall include a policy which provides for the accommodation of their customers with disabilities.
The respondent Toronto Pathways is ordered to ensure that all of its present and future employees and managers complete the on-line training module known as “Human Rights 101”, found on the website of the Ontario Human Rights Commission.
The respondent Toronto Pathways is ordered to post a “Code Card”, found on the website of the Ontario Human Rights Commission, in the waiting room at its current place of business and at any future place of business it occupies.
Dated at Toronto, this 6^th^ day of November, 2013.
“Signed By”
Maureen Doyle
Vice-chair