Robert Pando v. Colleges of Applied Arts and Technology Pension Plan, 2013 HRTO 465

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Pando Applicant

-and-

Colleges of Applied Arts and Technology Pension Plan Respondent

DECISION

Adjudicator: Kathleen Martin

Date: March 19, 2013

Citation: 2013 HRTO 465

Indexed as: Pando v. Colleges of Applied Arts and Technology Pension Plan

Appearances

Robert Pando, Applicant ) Self-Represented

Colleges of Applied Arts and ) Clifton Prophet, Counsel Technology Pension Plan, Respondent ) )

1These are two Applications made under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in services on the basis of disability. Tribunal File 2009-01513-I is an Application filed on February 27, 2009, under section 34 of Part IV of the Code (“the section 34 Application”). Tribunal File T-0199-08 is an Application arising from a complaint originally filed with the Ontario Human Rights Commission which was brought before the Tribunal on September 8, 2008, through an application made under section 53(3) of the Code (“the transition Application”). By Interim Decision dated July 31, 2009, it was decided that the Applications would be heard together: 2009 HRTO 1190.

2The applicant is a retired professor from Mohawk College and member of the respondent, a jointly sponsored multi-employer pension plan (the “Plan”). The Applications arise out of the applicant’s request to inspect the plan documents. Under section 29 of the Pension Benefits Act, R.S.O. 1990, c. P.8 (“PBA”), a retired member is entitled to inspect certain prescribed documents annually at the location where the member was formerly employed. While the PBA is silent about the duration of an inspection, the Plan has a policy that, in general, one day is appropriate for each annual inspection. In 2007 and 2008, the applicant requested a different time and/or location for his inspections relying in part on certain health issues: a request of three consecutive days instead of one day in 2007; and a request of two consecutive days at a different location in 2008. In each year, after some dialogue between the parties, the Plan refused the applicant’s request.

3In each Application, the applicant alleges that the respondent discriminated against him on the basis of disability in services when the respondent refused to grant his request. The applicant alleges that the respondent failed to meet its procedural and substantive obligation to accommodate him. In addition, the applicant alleges that in 2007, the respondent discriminated against him by requesting details of the nature and extent of his health issues. Further, the applicant alleges that he was reprised against in 2008 when the respondent refused to engage in its procedural duty to accommodate him because he had filed the Transition Application. The applicant seeks a number of remedies including compensation, a public apology and withdrawal from the Plan and transfer of the commuted value of his pension to a financial institution of his choosing.

4The respondent denies any violation of the Code. The respondent states that while the applicant may have certain medical conditions which qualify as a disability within the meaning of the Code, the applicant has not established a nexus between these conditions and any restriction imposed on him. The respondent further argues that if there is sufficient nexus found between the applicant’s medical conditions and the one-day inspection limit, the Plan’s ability to attempt to accommodate the applicant was thoroughly thwarted and frustrated by the applicant’s conduct.

THE PROCEEDING

5A hearing was held over several days, and on consent of the parties, final submissions were provided orally by conference call.

6At the hearing, I heard from three witnesses: the applicant; Robert Stuart, a communications officer of the Plan who was present during the inspections; and Paul Owens, the chief executive officer of the Plan at the applicable time who provided evidence on the Plan’s response to the applicant’s requests. On consent of the parties, Mr. Stuart’s evidence was provided by adopting his witness statement, which was supplemented with additional oral evidence including through cross-examination by the applicant.

7At the outset of the applicant’s evidence, the applicant sought to present his evidence by reading a 67-page statement that had not previously been produced. The respondent objected and I ruled that the applicant should present his evidence orally without reading his statement. On consent of the parties, I asked the applicant open-ended questions to facilitate the presentation of his evidence. At the end of his evidence, I provided the applicant with an opportunity to review his materials to ensure he had covered all the evidence that he wished to present.

THE EVIDENCE

8For the most part, the background and chronology of events are not in dispute. Instead, where the parties differ is what conclusions I should draw from the chronology of events. I summarize the evidence given below and accept the evidence unless indicated otherwise. The conclusions I reach are addressed in the analysis part of the Decision below.

Background

9The applicant has been active in the Plan both during his employment and since he retired.

10During his active employment, the applicant was an OPSEU representative on the Sponsor’s Committee. Following his retirement, the applicant was involved in forming a retiree’s association, the Ontario Colleges Retirees’ Association (“OCRA”) to advocate on behalf of retirees in the Plan. The applicant was the first president of the OCRA. At the time of the Applications, the applicant was no longer involved (having stepped down in July 2007, although the applicant remained a member of OCRA until December 2007).

The Early Inspections

11Prior to the events underlying the Applications, there was a history between the parties concerning the applicant’s inspections of the Plan. While I do not find it necessary to particularize the history in detail, I set out a summary below. Both parties acknowledged to differing degrees the adversarial nature of the parties’ relationship that developed over the course of the earlier inspections.

12The applicant exercised his right to inspect pension documents every year since 2003 and in fact has been the only member of the Plan to conduct an inspection. In the normal course, these inspections occurred at Mohawk College, the location of the applicant’s former employment. The inspections require a representative of the Plan to bring the documents to Mohawk College for the inspection.

13Prior to the events in the Application, the applicant had raised a variety of concerns about the inspection process to the Plan, including challenging the completeness of the documents produced (suggesting that various documents were omitted); disputing the presence of the Plan representative while the applicant conducted his inspections; challenging the charge for photocopying of documents from the Plan; and asking the Plan to recognize its responsibilities under the Code to provide the records in regular and large print sizes and in both French and English (although these requests were made on behalf of other retirees who may be affected rather than on his own behalf).

14In addition, commencing in 2004, the applicant raised concerns about the duration of the inspection time allocated, suggesting that he had no desire to drive back at night (referring to the fact that he inspects at Mohawk College in Hamilton but resides in Welland). In 2006, the applicant raised concerns again about the duration of the inspection time. Following a request to inspect documents, the applicant agreed to a date proposed by the Plan but stated that he “would not” commit to a specific starting or finishing time nor that he could complete the inspection in a day. The Plan responded that only one inspection was permitted and the applicant replied in a letter dated December 4, 2006 in a manner which was reflective of the growing adversarial nature of the interactions. The applicant stated in part:

…Regarding my inspection of the Plan’s records next week I have absolutely no intention of agreeing to the times of day that I will begin or end my inspection. Nor will I agree that I will complete my inspection within any time specified time frame. Neither you nor the Plan has any idea of the reasons that will guide my actions and frankly they are none of your business….

15In 2007, the applicant asked the Financial Services Commission of Ontario (“FSCO”) to examine whether the Plan had violated its obligation under the PBA by restricting the inspection time in 2006. In the course of the applicant’s complaint to FSCO, the applicant cited the reasons for his request, including the volume of materials, the driving time involved in attending at Mohawk College and also noted that “I had personal issues that I knew would not permit me to attempt to complete my inspection in one very long and strenuous day”. The applicant indicated that he could verify the issues to FSCO with documentation from his doctor if required but the Plan had “no right or reason to know what they were”. This correspondence was copied to the Plan.

16FSCO responded suggesting that a second day was not unreasonable. After further communication between the Plan and FSCO which included the Plan objecting to FSCO’s acceptance of certain factual assertions of the applicant, the Plan agreed to make an additional day available for the 2006 inspection (scheduled for October 11, 2007). In the course of its letter offering the second date, the Plan noted its position that the applicant would only be entitled to one day for each subsequent inspection.

17As a result of the various challenges by the applicant about the completeness of the documents during the period 2003 forward, the Plan added documentation to the material produced for the inspections. Originally, the Plan produced two binders of material; by 2005, the material had increased to three boxes of material including binders and folders.

18Subsequent to 2005, the records reached a steady state. Mr. Stuart estimated that there were between four and six documents produced each year thereafter (and definitely less than ten). The additional documents included for each year a new actuarial statement and financial statement and every two to three years, some new Plan text.

The 2007 Request to Inspect Records (the Transition Application)

19On November 5, 2007, the applicant made his request to inspect documents for the 2007 calendar year (notably this request was approximately one month after his second day of inspection for 2006). The circumstances surrounding this request are documented in a series of letters and emails. While a number of the documents are referenced as being “without prejudice” both parties relied on the documents during their evidence and submissions. The chronology documented is as follows:

• On November 5, 2007, the applicant wrote to the chair of the Plan’s Board of Trustees indicating his wish to conduct an inspection and his preferred location of his former place of employment, Mohawk College. The applicant stated that he intended to make “more extensive extracts” than in the past and to “accommodate the foregoing and based on my experiences regarding the large volume and technical nature of the many records to be inspected…” he would need the records for three consecutive days. The applicant then referenced that as he advised the Plan last year, he had very “personal health related issues” which he did not want to aggravate by putting himself under undue stress as a result of the day’s activities relating to the inspection. The applicant advised that he could not spend long days inspecting the records and “driving from Welland and back home” and would limit how late in the afternoon he will stay as he is “uncomfortable” driving in twilight (dusk) and after sunset.
• In response on November 13, 2007, the Plan stated that the applicant was only entitled to one day and offered to copy documents at a cost to the applicant. The Plan suggested that this was reasonable as the applicant inspects regularly (the last inspection having been approximately a month earlier on October 11, 2007, and that only very few documents had been added).
• In response to the health issues raised, the Plan stated that since the applicant had not provided “any particulars of the nature or extent” of his personal health related issues the Plan was unable to determine what if any accommodation may be reasonably required. The Plan did offer to schedule an earlier start time to accommodate the concern about driving at or after sunset.
• On November 20, 2007, the applicant responded to the Plan maintaining his request of three consecutive days. In response to request for particulars of the health issues, the applicant stated that “in my opinion requiring that I must provide the particulars of any health or physical issues/limitations I have to the Plan in order for the Plan to do what it already is required by law to do is a serious violation of my human rights and a discriminatory act.” Under protest, the applicant stated that about a year ago he suffered a very debilitating back injury which could recur and that over two years ago he had a serious operation from which he suffers side effects, which is his personal business and which he will not provide to the Plan because it has no right or need to know. The applicant rejected the offer of making copies as he stated that he had that ability regardless and without cost if made at Mohawk College.
• On November 26, 2007, the Plan responded, stating, among other things, that it has not “required” particulars of the nature and extent of his personal health-related issues and repeated what it had said. Apart from clarifying its position, the Plan stated that based on the information provided the only conclusion that the Plan could draw was that the applicant may require assistance in moving binders of documents in order to avoid a recurrence of the back injury. The Plan offered to have assistance provided to the applicant in this respect and also offered that if the applicant preferred to review documents standing, it could make a podium available.
• On December 7, 2007, the applicant responded, disputing that the Plan had not required particulars of his personal health-related issues. With respect to the accommodation offered, the applicant stated that it was demeaning and insulting. The applicant stated that he had clearly expressed what accommodation he needed – more time to inspect the records – which would reduce any physical stress. The applicant concluded that he would be filing a complaint with the Ontario Human Rights Commission as well as FSCO.

20The applicant and Mr. Stuart provided additional oral evidence about the inspection which occurred on December 5, 2007. Mr. Stuart testified that the inspection commenced shortly after 10:00 a.m. and concluded at 3:59 p.m. The applicant testified that he stayed till 4:30 p.m. I do not find the difference significant since on either account, the applicant stayed for most of the full day. At the end of the inspection, the applicant told Mr. Stuart that his day was done but that obviously he was not finished.

21In his evidence, the applicant stated that he did not have time to do the inspection that he wanted although he did not provide particulars of what was outstanding.

The 2008 Inspection (the section 34 Application)

22The circumstances surrounding the applicant’s efforts to inspect the Plan documents in 2008 are also documented in emails and correspondence. In particular:

• On November 8, 2008, the applicant notified the Plan that he wished to exercise his right to conduct his 2008 inspection at his former place of employment, Mohawk College. The applicant stated that based on his experiences regarding the large volume and technical nature of the records and having had his 2007 inspection improperly restricted to only day, he needed the records available for two consecutive days.
• On November 14, 2008, the respondent rejected the request of two consecutive days and offered to make records available for only a single day. Again, the respondent stated that a two-day inspection was not reasonable in the circumstances given that the applicant inspects Plan documents on a regular basis (this request being his sixth consecutive annual inspection and his seventh inspection day since 2003).
• On November 19, 2008, the applicant provided a four-page response disputing the claim that the request was unreasonable, stating, in part, that the Plan did not provide the full records for the first three inspections. The applicant also stated that he is “now asking the Plan for accommodation because of my health disabilities” which he states includes problems he has experienced with a disc in his back which particularly can occur under physical stress; side-effects from a serious operation in 2005 (which he maintains are personal and the specifics of which the Plan has no need or right to know); and that he has been diagnosed to be diabetic. The applicant asks that the inspection occur in Welland at the Niagara College Campus (as opposed to Mohawk College) to alleviate the physical stress of the inspection and enable him to take breaks at his home and to stay on the diet necessary to address his diabetes.
• On November 25, 2008, the Plan responded indicating that until the issue was adjudicated by Financial Services Tribunal, the Plan’s position is that the applicant is only entitled to a single day for inspection at Mohawk College. On the issue of accommodation, the Plan stated that that issue was before the Human Rights Tribunal (referring to the Transition Application) but that it was willing, on a without prejudice basis, to further accommodate him by providing him with copies of documents that are important to the applicant for this inspection at his cost of .50 per page (the Plan offered to absorb any delivery costs involved in getting the documents to the applicant).
• On November 25, 2008, the applicant responded, indicating that the Plan had refused his request for accommodation and that the “accommodations” they had offered were unacceptable. The applicant stated that his disabilities were different from 2007 but went on to state that he would not debate the issue. Under duress and “with the most vigorous protest”, the applicant stated that he would attend the single day of inspection at Mohawk College.

23The inspection occurred at Mohawk College. The applicant commenced his inspection around 10:18 a.m. and concluded the inspection around 2:00 p.m., at which point the applicant commented that he had not been able to finish but he was done for the day. The applicant stated that he left when he did because he was getting concerned about his diabetes and felt he had to go home. The applicant also stated that had he been given one day at Niagara College, he would have likely accepted as he had a specific thing in mind which he wanted to review. The applicant did not indicate what the specific thing was or explain whether he had been unable to review this document when he left the inspection at 2:00 p.m. The documentation prepared by Mr. Stuart at the time reflects that the applicant had looked at every item except the older valuations folder by the time he left the inspection.

Evidence on Disability

24In the hearing, the applicant submitted a medical note from his doctor dated December 2, 2008, which was provided to the respondent just before the commencement of the hearing in June 2010. This medical note identifies that the applicant has three conditions: a back injury from 2006 which was diagnosed as an acute discus protrussion with nerve root irritation which still causes pain in his back and leg and which led to a recurrence in November 2008; complications from a surgical procedure in February 2005 that cause a “significant impact” on the applicant’s life; and diabetes mellitus type 2 which has needed significant lifestyle modifications to control it without medication. The doctor also indicates that due to the applicant’s chronic discus degeneration of his lumbar spine, the applicant might experience episodic back pain and “preventative measures is important and advised”.

25In his evidence with respect to his back injury, the applicant stated that his doctor told him not to “overstress himself” and that whenever he has a stressful day he has subsequent discomfort (relying on a single example when he spent a day going to Toronto which became a long day and led to problems with his back on the following day). In addition, with respect to the side effects from the operation, the applicant states that the side effects occur whenever he is physically stressed and that a longer day therefore makes it more likely that something will occur.

Other Evidence

26After 2008, the applicant stopped exercising his annual right to inspect pension records. The applicant states that it was for personal reasons as his wife was very upset that he was doing it.

27The respondent made a “with prejudice” offer to the applicant on March 31, 2010. This offer to settle included that the Plan would deliver to the applicant a copy of each document relevant to the inspection pursuant to section 29 of the PBA and upon request would deliver to the applicant annually a copy of any new documents not already delivered in exchange for the applicant withdrawing the proceeding and releasing the respondent. The applicant declined this offer. The applicant stated that given that he decided not to inspect the documents anymore this offer was of no use to him.

ANALYSIS AND DECISION

The Provisions of the Code

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

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

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.

In addition, “disability” is defined in s. 10(1)(a) of the Code, in part, as follows:

10. (1)(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…

Does the applicant have a disability?

29The first issue to be determined is whether or not the applicant has a disability within the meaning of the Code. As indicated above, the applicant has a back condition (as diagnosed) which has caused ongoing periodic symptoms; suffers from side effects from an operation which are exacerbated by stress; and as of April 2008 was diagnosed with diabetes.

30Having regard to the evidence presented and the submissions made, I am satisfied that the applicant has established that he has three conditions which meet the definition of disability within the meaning of the Code. Diabetes is expressly included in the definition of disability. While the remaining conditions are not expressly included, I am satisfied that they are captured by the definition in section 10 which encompasses “any degree of physical disability, infirmity… caused by bodily injury, birth defect or illness”. The applicant has described a back injury and side effects from an operation both of which appear to be chronic causing periodic symptoms and/or discomfort.

Has the applicant been discriminated against on the basis of disability?

31The real issue in this case is whether the respondent discriminated against the applicant because of one or more of the disabilities.

32The main focus of the applicant’s submissions on this issue was on the respondent’s alleged failure to accommodate him. The applicant argued that once he identified that he had disabilities, it was incumbent upon the respondent to fulfill its procedural and substantive duties to accommodate him up to the point of undue hardship. However, the duty to accommodate is not a free-standing right under the Code. See Baber v. York Region District School Board, 2011 HRTO 213. Rather, as is always the case under the Code, the applicant bears the onus of establishing a prima facie case of discrimination by establishing in evidence that the respondent treated him in a distinct and disadvantageous manner because of his disability; or that a “requirement, qualification or factor” had a distinct and disadvantageous effect on him because of disability (s.11). If the applicant succeeds in doing this, the onus shifts to the respondent to prove a defence, such as the one in s.11(1)(a) or s.17 of the Code, including by proving that the applicant’s disability-related needs could not be accommodated without undue hardship (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109).

33In my view, the applicant has not made out a prima facie case of discrimination because he has not shown that he was disadvantaged by the respondent's requirement of a one-day policy for inspections at Mohawk College.

Did the imposition of the one-day policy and/or Mohawk College location disadvantage the applicant?

34Given that there are two Applications which involve different requests and different disabilities, I will address 2007 and 2008 separately.

The 2007 Request

35The 2007 request relates to the applicant’s back condition and the side effects from the operation. The applicant asserted that he needed three consecutive days for various reasons including his disabilities which he did not want to aggravate by putting himself under “undue stress”. This is based on the applicant’s view that a single inspection day would be “long” and thus may be stressful, which in turn, could cause discomfort in his back or exacerbate the side effects that he experiences. The applicant also stated that he would be limited in how late he could stay because he is uncomfortable driving in twilight and after sunset.

36As is apparent from the evidence, the primary source of the applicant’s disability- related needs comes from the applicant. While I have carefully considered the applicant’s evidence and the medical evidence he relied on, I find the evidence insufficient to establish that the applicant was disadvantaged by the one-day policy.

37In essence, the applicant contends that he had a disability-related need to review the plan documents over the course of three shorter days as opposed to one day. I found the applicant’s evidence in support of this proposition vague and ultimately unpersuasive. There was no clear explanation of why or how inspecting documents on a single day of inspection disadvantaged him. In this regard, the applicant testified that inspecting documents until 4 or 4:30 p.m. would be “pushing it”. However, there was no medical evidence presented to support this assertion, nor was there a coherent explanation from the applicant as to why having a “long day” would exacerbate his disabilities. For example, there was no evidence or suggestion that the applicant’s disabilities made it difficult to sit and review documents over the course of a whole day.

38On the contrary, the evidence before me suggests that the applicant was able to review documents over the course of a single day. In the precise circumstances of 2007, subject to taking some breaks, the applicant did review the documents provided for almost a full day (considering that he started at 10 a.m., his usual requested starting time, the room was booked till 5 p.m. and by his account he stayed until 4:30 p.m.). While the applicant stated that he had not completed his review by the time he left, he did not report at that time that he had to leave because of any symptoms he was experiencing either from his back condition or the side effects from the operation. Nor did the applicant testify at the hearing that upon leaving, he experienced any exacerbation of his symptoms having spent almost a full day reviewing documents in 2007. In my view, this gap in the applicant’s evidence combined with his failure to indicate a problem to the respondent in 2007 undermine the applicant’s position that he had a disability-related need to review the documents over the course of three shorter days.

39The applicant also had an inspection on December 5, 2006 for a similar period of time to that in 2007. On December 5, 2006, the applicant commenced his inspection around 10 a.m. and ended shortly before 4:30 p.m. While the applicant did advocate for a second date that year, which he received in October 2007, there was no evidence provided that the applicant experienced any symptoms in 2006 having spent the day (subject to breaks) inspecting documents. In short, the applicant’s evidence about his actual inspection experience does not support his claim that a single day of inspection causes his symptoms to be exacerbated nor provide any evidence to draw an inference that he could have gone through more material but for his disabilities.

40While the applicant did state that on one occasion in the following year 2008, he had a “long” day when he went to a different city, Toronto, for an unrelated matter, which caused him to have discomfort in his back on the following day, I do not find that this single example is convincing evidence corroborating the applicant’s claim that he was adversely affected in 2007 by the imposition of the one day inspection policy. Even if it were reasonable to consider evidence that relates from a subsequent year, from the limited factual details provided, it is not at all apparent that this is an analogous situation. The applicant provided no evidence of any contextual details which would permit me to make an assessment of its similarity and the facts that were provided – which involved travel to a city farther from his home – are not comparable.

41The applicant also referred in his request to the Plan at the time that he was uncomfortable driving in twilight or after sunset. The applicant did not provide any additional evidence in the hearing about this aspect of his request other than to state that it was related to his health issues because he did not want to stay late and drive at dusk. This evidence is insufficient to establish that his back condition or the side effects issue are exacerbated by driving at dusk.

42While the applicant did provide a medical note from his doctor, I do not find that the note addresses the applicant’s disability-related needs and thus I do not find it sufficient to establish that the applicant was disadvantaged by the respondent’s requirement. There is no reference in the medical to the applicant’s claim that his disability or disabilities relate to his need to have more inspection time or that he should not overstress himself with a long day or should avoid stressful situations because it may cause discomfort or symptoms related to his conditions. In respect of his back, the note does state that “preventative measures” are important and advised but does not elaborate on what they are. The note also says that the applicant has complications of a personal nature from the surgery that have a “significant” impact on his life but again does not elaborate what these are. Thus, I am left only with the applicant’s evidence about stress and the one day inspection which as noted I find insufficient to support the applicant’s claim of disadvantage.

43Medical evidence is not always or automatically required in a case under the Code to prove disability-related needs, given that in some cases the needs can reasonably be inferred because they are obvious. However, where as in this case, the claim is not obvious (a single inspection day causes stress), the absence of additional medical evidence is critical. This is particularly the case where the respondent from the outset took the position that notwithstanding the medical note, it would argue that the applicant had not borne his onus of establishing that he was disadvantaged. Nor can I reasonably infer in the circumstances of this case how the applicant’s disability-related needs impact on the inspection. Although the applicant did finally clarify at the hearing the nature of the personal symptoms he experiences as a complication from his surgery, it is not clear to me how these needs prevent him from inspecting documents or require an additional inspection day.

44In summary, for all of the above reasons, I have concluded that the applicant has not established that he was disadvantaged by the requirement that he only have a single inspection day in 2007. The applicant stated that he needed more time to avoid putting himself under undue stress. But apart from his assertion, I did not find that there was sufficiently clear, cogent and compelling evidence of such a link to discharge his burden of proof.

The 2008 Inspection

45I reach the same conclusion about the applicant’s request in 2008.

46As is apparent from the above chronology, in 2008, the applicant initially made a request for two consecutive days without any reference to disability. When that request was denied, the applicant sent a letter amending his request to ask for two days for accommodation at a different location because of his health disabilities (notably there is no explanation as to why the request is now for two days as opposed to three days in the preceding year). The applicant relies on the disability-related needs previously identified (“problems” with his disc in his back can occur at any time “particularly under physical stress”, has side effects from an operation) and identifies that he has been diagnosed as diabetic for which he identifies other disability-related needs. In particular, the applicant states that while he had “chosen” to attend at Mohawk in the past, he is now asking that the inspection occur at Niagara College in Welland as this location is close to his home which would “greatly reduce the stress” of his inspection, since he will be able to take breaks at his house to rest briefly and to stay on the diet that he has found necessary to address diabetes.

47In the submissions, the applicant states that the location change was to address the issue with his back and diabetes.

48I am sceptical of the bona fides of the applicant’s request in 2008 for two reasons. First, I am troubled by the fact that the applicant initially sought two days without reference to disability. While the applicant explained that the respondent knew of his needs, this is not entirely accurate given that the applicant relies on an additional disability in 2008. Second, the applicant amended his request to seek a new location for the inspection and identified a third medical issue only after his first request was rejected. This leaves the impression that the amended request is not genuine but rather artificially augmented after the respondent’s rejection of his first request.

49In any event, even if the request for two consecutive days at the Niagara College location is genuinely made, I find that the applicant has provided insufficient evidence to establish that he is disadvantaged by the respondent’s insistence on the Mohawk location and the provision of the single inspection day.

50As set out in the evidence summary, the applicant attended at Mohawk and left at approximately 2 p.m. At the time he left, the applicant stated that he was not done although he did not elaborate as to what “inspection” he had been unable to do. The applicant did not contradict Mr. Stuart’s evidence that he had reviewed all of the records with exception of the older valuations. As a result of the foregoing, I am not convinced that the applicant has led sufficient evidence to establish that he was disadvantaged by the inspection even considering that he concluded it early.

51With respect to the evidence related to his disability-related needs I rely on my reasons set out above in connection with the inspection in 2007. In addition, to the extent the applicant relies on different disability-related needs, I have similar concerns with respect to the adequacy of the evidence.

52In 2008, the applicant states that he needed the location change for his back condition and diabetes. On the basis of the evidence presented, the applicant appears to be articulating a preference as opposed to a need. This is apparent from the fact that initially he did not request the Niagara College location. Further, the applicant himself stated that he had “chosen” in the past to attend at Mohawk which suggests that it is discretionary and not based on a genuine need. It is well established that a respondent is required to accommodate the needs of the person, not the applicant’s preferences, desires, or wants. See Jeffrey v. Dofasco Inc., 2004 HRTO 5, upheld by the Divisional Court, Ontario (Human Rights Comm.) v. Dofasco Inc. (No. 2) 2007 CanLII 41275 (ON SCDC).

53With respect to his back condition, apart from the applicant’s assertion, there is no evidence that his back condition requires an inspection closer to his home so that he can alleviate the stress and take breaks at home (thus establishing that the respondent’s imposition of the Mohawk location disadvantaged the applicant). The medical does not address this need or the relationship between his back condition and a need to take breaks at home.

54With respect to diabetes, the applicant has not provided a clear and convincing explanation as to why he is disadvantaged by an inspection at Mohawk College as opposed to an inspection in Welland. While the applicant points to the need to stay on the diet necessary to control his diabetes, he has not explained why he cannot attend to his dietary needs by bringing food with him. The medical note that the applicant has provided does not assist as it merely references lifestyle modifications which are not particularized. In sum, the evidence falls short of establishing that the applicant is disadvantaged by the one day inspection policy because of his diabetes.

55For the above reasons, I find that the applicant has not made out a prima facie case of discrimination under the Code. As a result, it is not necessary for the respondent to establish that its requirements were reasonable and bona fide, including by showing that the applicant’s disability related needs could not have been accommodated without undue hardship.

Did the respondent otherwise violate the Code by seeking particulars of the applicant’s disabilities?

56The applicant also argued that the respondent breached the Code when it stated that since the applicant had not provided “any particulars of the nature or extent” of his personal health related issues, the Plan was unable to determine what if any accommodation may be reasonably required. The applicant argues that this “insistence” on particulars is a separate breach of the Code. I do not find that the applicant has established that the respondent breached the Code by its conduct in responding to the applicant’s request.

57The allegation made is based on the respondent’s correspondence which is set out in paragraph 19 above. In 2007, when the applicant requested three consecutive days, the respondent responded to the health issues raised by stating that since the applicant had not provided “any particulars of the nature and extent” of his personal health related issues, the Plan was unable to determine what if any accommodation may be reasonably required”. When the applicant took offence to this statement, the Plan clarified that it had not required particulars and repeated what it said. The applicant continued to dispute the issue.

58When I consider the statement made in context and the entirety of the exchange, it is apparent that the respondent is attempting to clarify what accommodations, if any, may be reasonably required. While the choice of language – referencing the applicant not having provided “particulars” – may have been somewhat awkwardly chosen, I accept that the respondent was interested in getting information to understand what accommodation was needed. Given the context – a request for three consecutive days from a member who regularly inspected documents and the limited information provided by the applicant, information that I have found insufficient to establish disadvantage – I find that a request for further information was reasonable.

Was the Plan’s conduct in responding to the applicant’s request in 2008 a reprisal?

59The applicant also argued that he was subjected to a reprisal when the Plan refused to engage in its procedural duty to accommodate him because he had filed the Transition Application.

60Section 8 of the Code prohibits reprisal for claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or refusing to infringe the right of another person under the Code. Reprisal requires evidence of an intent on the part of the respondent to reprise against an applicant: see Jones v. Amway of Canada Ltd., [2002] O.J. No. 1504 (Ont. Sup.Ct.)

61I see no basis for finding that the applicant was reprised against in the respondent’s response to his request in 2008. Although I am troubled by the Plan’s response in declining to engage with the applicant because of the Transition Application (given that the applicant was relying on some different facts), the evidence falls short of establishing a reprisal. While stating that the issues were before the Tribunal, there is no basis on which to conclude that the respondent was trying to punish the applicant for claiming or enforcing a right under the Code or instituting or participating in proceedings under the Code. As such I do not find that the respondent intended to reprise against the applicant because of the Transition Application.

62For all of the above reasons, the Applications are dismissed.