Vanhelvoort v. Ontario Labour Relations Board, 2013 HRTO 1998

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rina Jade Vanhelvoort

Applicant

-and-

Ontario Labour Relations Board

Respondent

DECISION

Adjudicator: Brian Eyolfson

Date: December 2, 2013

Citation: 2013 HRTO 1998

Indexed as: Vanhelvoort v. Ontario Labour Relations Board

APPEARANCES

Rina Jade Vanhelvoort, Applicant

Paul Vanhelvoort, Representative

Ontario Labour Relations Board, Respondent

Leonard Marvy, Counsel

Introduction

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 21, 2011, and alleges discrimination with respect to goods, services and facilities on the basis of race, colour, ethnic origin, sex and family status.

2The allegations in the Application primarily concern the adjudication of a claim filed by the applicant with the respondent, the Ontario Labour Relations Board (the “OLRB”). The applicant also alleges that a restroom at the OLRB did not have a baby changing station, and that the OLRB has no facility to change children’s diapers.

3By Interim Decision dated June 20, 2011, 2011 HRTO 1185, reconsideration denied, 2011 HRTO 1400, the Tribunal dismissed the allegations in the Application concerning the OLRB’s adjudication of the applicant’s claim, as outside of the Tribunal’s jurisdiction based on the doctrine of judicial immunity. The Tribunal ordered that the allegation in the Application concerning the lack of adequate diaper changing facilities could continue in the Tribunal’s process.

4In responding to the remaining allegation in its Response to the Application, the respondent submits that the washroom facilities on the three floors where it holds hearings, at 505 University Avenue in Toronto, do not have baby changing stations, but have quite large ledges (44” X 16”) in front of permanently sealed windows which could be used for diaper changing. Additionally, the main floor washroom in the building has a large sink counter which could also be used for diaper changing. The respondent also submits that the applicant did not request any assistance, or accommodation, when she attended an OLRB hearing on April 6, 2010.

5In her Reply dated May 18, 2011, the applicant disagrees that a ledge is a safe place to change a baby’s diaper. She submits that her husband asked staff at the OLRB if they had a “family friendly washroom” and was told “no” and offered no alternative.

Preliminary matters

6On March 14, 2013, the applicant filed a Request for an Order During Proceedings (“RFOP”) seeking an amendment of the Application, and a deferral of the hearing pending the Tribunal’s determination of the amendment request and other issues that the applicant identified as outstanding in this matter. In a Case Assessment Direction dated March 22, 2013, the Tribunal indicated that the applicant appeared to request in her RFOP that her minor child be added as an applicant. The Tribunal indicated that any outstanding preliminary issues could be addressed at the outset of the hearing on March 28, 2013.

7At the outset of the hearing, the applicant requested that the hearing be adjourned so that an OLRB mediator could be summonsed to give evidence as to different accommodations the mediator offered the applicant when the applicant previously attended the OLRB for a mediation. When it was explained to the applicant that both she and her husband could give evidence as to what accommodations were offered when they previously attended an OLRB mediation, the applicant agreed that it was not necessary to adjourn the hearing to summons the mediator.

8The applicant also submitted that the respondent’s witness list for the hearing was due on February 11, 2013, according to the Tribunal’s Rules of Procedure, but she did not receive it until February 13, 2013. She requested that the respondent’s witnesses be excluded from the hearing because the witness list was delivered late.

9The applicant did not assert that she was prejudiced in any way by receiving the respondent’s witness list on February 13, 2013. In the circumstances, the applicant’s request that the respondent’s witnesses not be able to testify due to the respondent’s witness list being delivered to the applicant two days late according to the Tribunal’s Rules was denied.

10The applicant also clarified at the outset of the hearing that she was asking that her minor child be added as a co-applicant to the Application. She submitted in her March 14, 2013 RFOP that it was not only her that was subjected to discrimination on the basis of family status, but that her minor child was also subjected to discrimination on the basis of both family status and age, in relation to a request for a baby changing station. The respondent opposed the applicant’s request to add her minor child as a co-applicant, and submitted that it would be unfair to do so in light of the late timing of the request.

11The Tribunal denied the applicant’s request to add her minor child as a co-applicant, in light of the nature of the request, and the late stage in the proceedings at which the request was brought. In particular, the applicant filed her RFOP to add her minor child as a co-applicant nearly three years after the alleged incident of discrimination, and two weeks prior to the hearing of the Application.

12The Tribunal also noted that previous Tribunal decisions have treated requests to add co-applicants as requests to file separate applications on behalf of another individual, which then could be consolidated, and could raise issues of delay. See Hawley v. Fairlea Park Housing Co-operative Inc., 2013 HRTO 490, Denesuik v. Lennox and Addington Family and Children’s Services, 2010 HRTO 373 at paras. 4-5, S. L.-M. v. York Region District School Board, 2010 HRTO 2361 at paras. 14-16, and J.C. v. Canadian Hockey Association, 2011 HRTO 385 at paras. 15-17.

WITNESSES

13The applicant and her husband, Paul Vanhelvoort, gave evidence at the hearing. The respondent called three witnesses: Rene Belanger, who has been a receptionist, or Client Service Representative, with the OLRB since 2002, and was working on April 6, 2010; Costa Argiros, a Case Processing Assistant, who worked as a receptionist with the OLRB between May 2008 and May 2012, and was working on April 6, 2010; and, Catherine Gilbert, the OLRB’s Assistant Registrar/Director.

SUMMARY OF EVIDENCE

Applicant’s evidence

14The applicant testified that she attended a mediation at the OLRB in December 2009, and the OLRB’s mediator offered to open another hearing room for the applicant to care for her child, however, it was not necessary at the time.

15The applicant testified that when she attended an OLRB hearing on April 6, 2010, she asked Mr. Vanhelvoort to ask the respondent if they could be accommodated with a private room, or “something”, because she needed to breast feed her child and change him at the same time. She testified that Mr. Vanhelvoort went to the reception area, that she was also there, and that a receptionist said that the respondent did not have any private room to offer them, just the washroom.

16The applicant testified that the OLRB’s washroom has a space at the window but there is also a heater there and it is not safe to put her child there and it is not clean. She also explained that her child squirms and that if she put him there he might fall.

17In cross-examination, the applicant confirmed that when she attended a mediation at the OLRB in December 2009 she was offered another separate room to change her child, if needed, and that there were rooms in the area that she could have used. She also confirmed that, on April 6, 2010, she asked her husband to ask for another room, but testified that she has no recollection of what he asked the receptionist. The applicant confirmed that she did not ask the respondent for another room, nor did she ask for anything else. She also explained that she was able to manage changing her child on April 6, 2010, by bringing a stroller into a washroom.

18In re-examination, the applicant testified that Mr. Vanhelvoort asked for “family friendly facilities” and that “family friendly facilities” and a baby changing station are “kind of the same” to her.

19Mr. Vanhelvoort confirmed that he attended the OLRB in December 2009 with Ms. Vanhelvoort, and testified that an OLRB mediator saw their child and offered them another room.

20Mr. Vanhelvoort testified that, on April 6, 2010, Ms. Vanhelvoort directed him to obtain some place to care for their child. He testified that he asked a female receptionist if she had any family friendly facilities and she told him “no”, but she said that they do have a “handicapped” washroom. He testified that he told Ms. Vanhelvoort that it was better than nothing.

21In cross-examination, Mr. Vanhelvoort testified that he knew the respondent had a separate room if they asked for it and he knew that was a possibility. It was also put to Mr. Vanhelvoort in cross-examination that all three of the receptionists on duty on April 6, 2010 were men. Mr. Vanhelvoort maintained that he asked a female receptionist for family friendly facilities, and testified that whether that includes a baby changing station is “pretty much apparent”.

Respondent’s evidence

22Mr. Belanger testified that he worked on April 6, 2010, but was in the back most of the day. He did not recall any request for a diaper changing facility or a family friendly washroom. He testified that it was not possible that there was a female receptionist that day, and referred to a schedule indicating three men were on reception that day. Mr. Belanger also testified that one of his duties is to show people to hearing rooms, and, if he was asked if the respondent had family friendly facilities on April 6, 2010, he would have said that they did not, at the time. He also testified, however, that there are always a couple of hearing rooms available, and he would have, and has, opened another hearing room. He also testified that the respondent has a room with a couch.

23Mr. Argiros testified that he was working on April 6, 2010 and recalls someone asking for a “diaper changing station”, or a “baby changing or diaper changing facility”, around that time, which the respondent did not have. Mr. Argiros explained that he spoke to a colleague and a supervisor who both confirmed that they did not have a baby changing facility, and he relayed that information to the person who asked.

24Mr. Argiros testified that he did not recall who came to the desk but he remembered Mr. Vanhelvoort. He did not recall Ms. Vanhelvoort. Mr. Argiros also testified that there was no request for assistance, or for anything else, at the time. He explained that he did not offer any alternatives because when he confirmed that the respondent did not have such a facility, the person was “okay” and said “thank you”.

25Mr. Argiros testified that he heard that the respondent now has a baby changing station, and that there are tables in the hearing rooms that could be used to change a baby.

26Ms. Gilbert testified that she has been with the OLRB as a Deputy Director/Registrar for 2.5 years, and, prior to that, she was a senior mediator at the OLRB for 7 years. She testified that it is quite rare to see parents with babies at the OLRB, and, during her time with the OLRB, she had parents with a baby in one of her mediations, and she may have seen a parent with an infant one or two other times. She explained that several years ago a woman brought a baby to a mediation and she needed to change the baby at the end of the mediation. Ms. Gilbert testified that she suggested that she just use the board table in the room they had finished meeting in.

27Ms. Gilbert testified that the respondent installed a baby changing table in the autumn of 2011. It is located in a generic, wheelchair accessible washroom, which is a large, private washroom. Ms. Gilbert also testified that the respondent has numerous rooms with tables on each floor, and that, any given day, there are several hearing rooms open that people could use to change a baby. There are also low benches on each floor that could be used to change a baby.

ANALYSIS AND DECISION

Relevant Code provisions

28Sections 1, 9, and 11 of the Code state as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of… family status.

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

3. (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.

29In addition, “family status” is defined in section 10(1) of the Code as “the status of being in a parent and child relationship”.

Credibility

30To the extent that any issues addressed in this Decision turn on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at paras. 356-357:

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

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

Was the applicant subjected to discrimination on the basis of family status in the provision of services?

31The applicant submits that this case has always been about one thing: did Mr. Vanhelvoort ask the respondent if they had “family friendly facilities”. The applicant submits that where this was asked, the onus shifts to the respondent to offer a solution that is acceptable. The applicant submits that, at an OLRB mediation, a mediator offered services other than a washroom, which I understand the applicant considered to be appropriate accommodation.

32The respondent submits that the lack of a diaper changing station did not result in discrimination, as it did not interfere with the applicant’s ability to fulfil a substantial parental obligation and there was no burden or disadvantage. The respondent also submits that the applicant did not meet her onus to communicate her need for assistance to the respondent.

Has the applicant established a prima facie case of discrimination on the basis of family status?

33The applicant bears the initial onus of establishing that a prima facie case of discrimination exists in the circumstances. See Baber v. York Region District School Board, 2011 HRTO 213 at paras. 88 and 91 to 93. In addition, as the Tribunal explained in Harrington v. Hamilton (City), 2010 HRTO 2395, the Code is concerned with substantive discrimination:

As stated in C.M. v. York Region District School Board, 2010 HRTO 1494 at para. 4, the Code does not aim to eliminate all differences in treatment, but rather discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code: see generally Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at p. 174; R. v. Kapp, 2008 SCC 41; Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 80-84. Not all actions that may have an impact on people identified by a ground constitute substantive discrimination.

34In the present case, the applicant attended a hearing at the respondent OLRB with her husband and infant child on April 6, 2010. At some point while she was at the OLRB on April 6, 2010, the applicant needed to change her child’s diapers, and it appears from the evidence that she did change her child’s diapers during a break. The applicant explained in her evidence that she was able to manage changing her child by bringing a stroller into a washroom. Having considered the applicant’s evidence, in the particular circumstances of this case, it is not clear to me that the applicant has established, on a balance of probabilities, that she was disadvantaged on the basis of family status, as a result of the respondent not having a specific diaper changing facility, such as to establish a prima facie case of discrimination under the Code. Put another way, it is not clear to me, in the present case, that the applicant has established that the absence of a washroom with a specific facility for changing diapers interfered with her “ability to fulfill her substantial parental obligations in any realistic way.” See Canada (Attorney General) v. Johnstone, 2013 FC 113 at para. 128.

35In any event, it is not necessary for me to determine if the applicant has established a prima facie case of discrimination on the basis of family status in the present case, as I find, for the reasons set out below, that the applicant did not sufficiently communicate to the respondent any actual needs related to the ground of family status for the purposes of triggering the duty to accommodate.

Did the applicant make her needs known for the purposes of accommodation?

36To begin with, it is not entirely clear what the applicant and/or Mr. Vanhelvoort asked the respondent for in relation to child care on April 6, 2010. The Application simply alleges that a restroom at the OLRB did not have a baby changing station, and that the OLRB has no facility to change children’s diapers. In her Reply dated May 18, 2011, the applicant alleges, in the context of submissions regarding the allegation that the respondent does not have a “baby changing station”, that Mr. Vanhelvoort asked OLRB staff if they had a “family friendly washroom” and was told “no” and offered no alternative.

37In a response dated May 3, 2012, to a Request for Summary Hearing filed by the respondent, the applicant submits that Mr. Vanhelvoort did not ask the respondent for a baby changing station on April 6, 2010, but a private room for the applicant to feed her baby. The applicant submits that she overheard Mr. Vanhelvoort’s request.

38Further to the applicant’s submission in her response to the respondent’s Request for Summary Hearing, the respondent filed an RFOP on November 28, 2012, seeking clarification of the remaining issues before the Tribunal. In her response, dated December 12, 2012, to the respondent’s RFOP, the applicant submits that a request was made to the respondent’s receptionist “for family friendly facilities”, and that the respondent does not have “a baby changing station”.

39At the hearing, the applicant testified that when she attended the OLRB on April 6, 2010, she asked Mr. Vanhelvoort to ask the respondent if they could be accommodated with a “private room, or something”, because she needed to breast feed her child and change him at the same time. She testified that Mr. Vanhelvoort went to the reception area, that she was also there, and that a receptionist said that the respondent did not have any private room to offer them, just the washroom. In cross-examination, the applicant confirmed that, on April 6, 2010, she asked Mr. Vanhelvoort to ask for another room, but testified that she has no recollection of what he asked the receptionist. In re-examination, the applicant testified that Mr. Vanhelvoort asked for “family friendly facilities” and that “family friendly facilities” and a baby changing station are kind of the same to her.

40In light of the various inconsistencies in the applicant’s pleadings and evidence, including her admission in cross-examination that she has no recollection of what Mr. Vanhelvoort asked the respondent’s receptionist, I prefer the evidence of Mr. Vanhelvoort and Mr. Argiros as to what was requested in relation to child care on April 6, 2010.

41Mr. Vanhelvoort testified that he asked a receptionist if the respondent had any family friendly facilities and was told “no”, but that the respondent does have a “handicapped” washroom. In cross-examination, he maintained that he asked a receptionist for family friendly facilities, and testified that whether that includes a baby changing station is “pretty much apparent”.

42Mr. Argiros testified that he was working on April 6, 2010 and recalls someone asking for a “diaper changing station”, or a “baby changing or diaper changing facility”, around that time. He explained that he spoke to a colleague and a supervisor who both confirmed that they did not have a baby changing facility, and he relayed that information to the person who asked. Mr. Argiros testified that he did not recall who came to the desk but he remembered Mr. Vanhelvoort.

43In the circumstances, I find that whatever particular words were used by Mr. Vanhelvoort, he was understood to have asked if the respondent had a washroom equipped with facilities specifically for changing a baby’s diaper. I also find, based on the evidence, that Mr. Vanhelvoort was told that the respondent did not have such a facility, after which there was no further conversation relating in any way to child care between Mr. Vanhelvoort, or the applicant, and the respondent.

44Mr. Argiros testified that, after he relayed the information that the respondent did not have a baby changing facility, there was no request for assistance, or for anything else, at the time. He explained that he did not offer any alternatives because when he confirmed that the respondent did not have such a facility, the person was “okay” and said “thank you”. This evidence of Mr. Argiros’ was not disputed at the hearing. Mr. Vanhelvoort testified that when he was told that the respondent did not have family friendly facilities, but had a “handicapped” washroom, he told Ms. Vanhelvoort that it was better than nothing. The applicant also confirmed that she did not ask the respondent for another room, nor did she ask for anything else.

45The Tribunal and the courts have made it clear that a person seeking accommodation has a duty to make his or her Code ground-related needs known to the service provider in order to trigger the service provider’s duty to accommodate the person’s needs up to the point of undue hardship. See, for example, Huseynov v. Nimigan Mihailovich Reporting, 2012 HRTO 807 at paras. 40-41, MacDonald v. Cornwall Public Library, 2011 HRTO 1323; Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; and Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970.

46While, in some circumstances, requesting a washroom with a diaper changing facility may trigger a service provider’s duty to accommodate, I am not satisfied that any actual family status-related needs of the applicant were sufficiently made known to the respondent to trigger the duty to accommodate in the present case. It appears undisputed that, after Mr. Vanhelvoort was advised that the respondent did not have a washroom with diaper changing facilities, he simply said “thank you” and there was no further conversation in relation to any possible Code-related needs. Mr. Vanhelvoort testified that he told the applicant that the availability of an accessible washroom was better than nothing. It appears that neither the applicant, nor Mr. Vanhelvoort, provided any further information to the respondent so that an assessment could be made of any actual need for accommodation.

47In addition, the applicant testified, and Mr. Vanhelvoort confirmed, that when they attended a mediation at the OLRB in December 2009 they were offered another separate room to change their child, if needed, and that there were rooms in the area that could have been used. Mr. Vanhelvoort testified that he knew the respondent had a separate room if they asked for it and he knew that was a possibility. All of the respondent’s witnesses testified that the respondent has rooms available that could be used for the purposes of changing a baby, and the applicant appeared to take the position that being provided with a room to change her child would have been appropriate accommodation. She testified, however, that she did not ask the respondent for another room, nor did she ask for anything else. It appears that, had the applicant or Mr. Vanhelvoort requested a room for changing their child’s diapers, a room could have been provided, but they did not make such a request. Ms. Gilbert also testified that the respondent has low benches on each floor that could be used for changing a baby.

48In the particular circumstances of this case, I am not satisfied that the applicant made any actual needs related to the ground of family status sufficiently or reasonably known to the respondent such as to trigger the duty to accommodate.

49In all of the circumstances, the Application is dismissed.