HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Henry Freitag and Bill Ogilvie
Applicants
-and-
The Corporation of the Town of Penetanguishene
Respondent
DECISION
Adjudicator: Mark Hart Date: April 4, 2013 Citation: 2013 HRTO 554 Indexed as: Freitag v. Penetanguishene (Town)
APPEARANCES
Henry Freitag, Applicant Self-represented
Bill Ogilvie, Applicant Henry Freitag, Representative
The Corporation of the Town of Penetanguishene, Respondent Michael M. Miller, Counsel
Introduction
1This Decision addresses seventeen Applications 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.
2I will be addressing these 17 Applications in two groups. The first group consists of 13 Applications against the Town of Penetanguishene (the “Town”) which were combined and scheduled for a hearing held on August 2, 2012. Twelve of these Applications were filed by the applicant Henry Freitag (sometimes referred to as the “applicant” in this Decision) and one by Bill Ogilvie, who is represented by Mr. Freitag. These Applications raise issues about the slope of various sidewalks in the Town, the absence of sidewalks in areas by the applicants’ homes or in other areas of the Town, disabled parking spots, various accessibility issues pertaining to the Town arena, non-accessible toilet facilities at the Town Dock, and a failure to accommodate Mr. Freitag’s needs at a Town Council meeting.
3The second group of Applications consists of four Applications, all filed by Mr. Freitag against the Town, raising issues about the absence of a sidewalk near Mr. Freitag’s home, the lack of a fire safety plan for the evacuation of persons with disabilities in certain Town facilities, and various accessibility issues pertaining to the Curling Club. With regard to this group of Applications, this Decision will address certain preliminary issues that arise in relation to these four Applications, including whether all or some of these Applications should be dismissed as being duplicative and an abuse of process, or as raising issues not within this Tribunal’s jurisdiction, or as being barred by s. 53(8) of the Code.
1. THE FIRST GROUP OF 13 APPLICATIONS
Reasonable prospect of success
4At the hearing on August 2, 2012, I heard evidence from the two applicants, including cross-examination by respondent counsel and an opportunity for the applicants to provide any further evidence arising out of cross-examination, relating to the first group of 13 Applications filed by the applicants against the respondent.
5At the outset of the hearing, I advised the parties that, after hearing the applicants’ evidence, I would be inviting submissions from the parties regarding whether the applicants had established that they have a reasonable prospect of success in proving that they experienced discrimination because of disability in violation of the Code in relation to these 13 Applications. The parties agreed to provide these submissions in writing.
6This Tribunal’s caselaw has established that at any appropriate point in the hearing process, an adjudicator can request submissions from the parties as to whether an applicant has a reasonable prospect of success in proving his allegations: see Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.
7As stated in Pellerin at paras. 10 to 32:
A successful claim of discrimination or harassment requires an applicant to show that one of the prohibited grounds was a factor in disadvantage experienced by the applicant. . . . Discrimination . . . need not be the only or even the principal factor in a respondent’s decision or actions, but an applicant must show that it was one of the factors.
The burden of proving that a prohibited ground . . . was a factor in a respondent’s decision or action lies on an applicant. An applicant must establish a connection between the disadvantage and the ground on a balance of probabilities. . . .
Reconciling an applicant’s burden of proof with the reality that information from a respondent may be the only way an applicant can prove his or her case is a tension in deciding Code applications. On one hand, because the reasons for a decision are often only known to a respondent, it is important to ensure that the Tribunal process provides a fair and appropriate opportunity for applicants to obtain evidence that would permit them to establish discrimination and that the Tribunal use its expertise to focus on such evidence. It is also important that neither party undergo the cost, inconvenience, and potential stress of Code proceedings where there is no reasonable possibility that allegations of Code violations will succeed, and that public resources be appropriately used in resolving such disputes. Human rights applications should not be an endless search for an unlikely needle in a haystack.
The Code and the Tribunal Rules of Procedure require the Tribunal to apply its expertise in the resolution of human rights disputes in a manner that is principled, practical, proportionate and adapted to the dispute before it. The Code directs the Tribunal, in s. 41, to adopt procedures and practices that offer the best opportunity for a “fair, just and expeditious resolution of the merits of the matters before it” and this principle guides the interpretation of the Rules (Rule 1.1). The Tribunal is specifically empowered to adopt practices or procedures “that are alternatives to traditional adjudicative or adversarial procedures” (s. 43(3)(a) and Rule 1.6). In particular, the Tribunal is empowered to define and narrow the issues and to determine the order in which the issues and evidence will be presented (s. 43(3)(b) and Rule 1.7 (g) and (h)).
These provisions, in my view, instruct the Tribunal not to be formalistic about the order or extent to which evidence is called. They invite the Tribunal to apply its knowledge of human rights law and the types of disputes that come before it to decide what evidence it needs to hear in order to resolve a dispute, in particular one in which the connection to the Code seems weak. They require the Tribunal to balance the principles discussed above. They suggest tailoring the procedure in a particular case to ensure that the applicant has a fair and appropriate opportunity, given the facts of the case, to obtain and present evidence that might prove, on a balance of probabilities, a link between a respondent’s actions and the Code through disclosure or cross-examination. At the same time, in my view, the process must be structured so that the making of a bald allegation or a mere unfounded suspicion does not place inappropriate burdens on respondents, and so that an application or hearing is terminated when it is clear that there is no reasonable prospect an applicant can prove his or her allegations. . . .
. . . the principle that an application should be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process.
. . . when a general evaluation of the evidence that has been called and is proposed to be called makes it clear that the Application has no reasonable prospect of success; the Application should be dismissed. . . . . . .
. . . it is neither appropriate nor principled that the hearing continue when there remains only a theoretical possibility and no reasonable prospect that evidence that could meet an applicant’s burden of proof will come forward. . . . When an applicant has had a chance to fully outline what evidence he or she still intends to call and the basis on which he or she submits the Application can succeed, but there is no reasonable prospect that a violation of the Code would be found, the Application should be dismissed.
. . . the test of no reasonable prospect of success, and the flexibility that it permits, is in my view most consistent with the principle of proportionality that is fundamental to a modern justice system. It allows the Tribunal to ensure that the hearing and the parties’ resources are directed to obtaining, in a focused manner, the evidence necessary to determining the merits of the case, given what is at stake. The emphasis is on determining the just result under the legal tests prescribed by the Code, and not the legal strategies of the parties or their representatives.
8In the particular case before me, I advised the parties that it seemed to me that several issues arise upon which I was inviting submissions from the parties regarding whether the applicants have a reasonable prospect of success in proving their allegations. The first issue I identified is whether the applicants have established that they have a disability within the meaning of the Code and restrictions or limitations arising from that disability that result in discrimination against them personally as a result of the various allegations raised in the 13 Applications before me. In particular, I noted that an issue arises as to whether the applicants have established that they have experienced a real burden or disadvantage because of their particular disability and limitations arising from the various situations about which they have complained.
9This Tribunal does not have general jurisdiction to enforce the Building Code, or regulations under other legislation, or non-legislative accessibility standards, although these things may be referenced in evidence in a Tribunal proceeding. This Tribunal’s only jurisdiction in this proceeding is under s. 1 of the Human Rights Code, and to determine whether either applicant personally has experienced discrimination because of disability in respect of services for which the Town is responsible. In a proceeding under the Code initiated by an individual, the evidence needs to establish an infringement of that specific individual’s rights under the Human Rights Code because of a prohibited ground of discrimination, as opposed to an infringement of the rights of other persons. So the issue is not whether some other person with a particular kind of disability would face barriers or discrimination because of the situations raised in the Applications before me. Rather, the sole issue before me is whether the individual applicants experienced discrimination because of any particular disability they may have.
10In addition, I identified that issues also arise as to whether some situations complained about are the responsibility of the Town, whether some have been resolved, or whether some simply have no practicable means of resolution. Further, at least with respect to Application 2008-01034-I, I noted that an issue arises as to whether this Application is barred by s. 53(8) of the Code, which bars an applicant from filing a new application raising issues that were the subject-matter of a prior complaint to the Ontario Human Rights Commission, or whether this Application is an abuse of process on the basis that all or some of the allegations raised formed part of a prior complaint to the Commission that was withdrawn. As well, I noted that some of the evidence I heard gives rise to concerns about the timeliness of the allegations raised.
11I directed the respondent to serve and file its written submissions first on the issue of reasonable prospect of success, and to do so by no later than September 7, 2012. I directed that these submissions were to be based on the testimony of the applicants and the documents and materials in evidence before me at this stage of the hearing. I noted that, while the respondent had submitted statements of the anticipated evidence of its proposed witnesses, I needed to be mindful that no respondent witnesses had yet testified before me and had not been subject to cross-examination.
12I directed the applicants to serve and file their submissions in response to the respondent’s submissions by no later September 28, 2012. I directed that these submissions also must be based on the evidence provided at the hearing on August 2, 2012, and the applicants were not to supplement or add to the evidence they gave before me or submit additional documents that were not in evidence before me.
13In a Case Assessment Direction (“CAD”) dated August 7, 2012, I set out in writing the oral directions I had given at the hearing on August 2, 2012 (as noted above). In this CAD, I also expressed my awareness that in correspondence to the Tribunal prior to the hearing, the applicants had identified certain Town officials that they wanted to call as witnesses in support of their case, namely the CEO of the Public Library, the Town’s Director of Planning and the Town’s Director of Public Works. I stated in this CAD that, to the extent that the applicants believe that evidence could be elicited from these individuals in support of establishing a reasonable prospect of proving that they experienced discrimination because of disability, then the applicants’ submissions could set out what relevant evidence they believe would be elicited from these individuals.
14However, in saying this, I stated in this CAD that I wanted the applicants to be mindful of their obligation to prove that they personally experienced discrimination because of disability arising out of the various situations raised in the 13 Applications, as opposed to the respondent’s burden of proving (if the applicants were to establish discrimination) either that the applicants’ needs could not be accommodated or that it would cause undue hardship to the respondent to do so.
15In the August 7, 2012 CAD, I provided a few examples to illustrate the point I was making, as follows (at paras. 11 to 13):
The issue raised by Mr. Freitag in relation to the public library is an allegation that he personally experienced discrimination because of disability as a consequence of the location of the push button to operate the exit doors on the other side of the security screen. I have heard Mr. Freitag’s evidence on this issue in full, and I have a photo of the area at issue. It appears to me that it is on the basis of this evidence that Mr. Freitag will have to be able to prove that he experienced a real burden or disadvantage due to disability as a result of the location of the push button. It is not clear to me what relevant evidence the CEO of the public library would have on this point. On the other hand, if Mr. Freitag was able to establish discrimination, then the CEO’s evidence may be relevant in relation to what might be done to re-locate the push button and what the cost and financial implications of such a re-location might be. But this latter issue is not the issue I am raising at this point, as the issues of accommodation and undue hardship only arise if the applicant has been able to prove discrimination. The issue I have raised and upon which I am seeking submissions from the parties at this stage of the proceeding is solely whether the applicants have a reasonable prospect of proving that they experienced discrimination.
In his correspondence to the Tribunal, Mr. Freitag also states that he wants to call the Town’s Director of Planning to provide records of the lot line between the Angel Gate property and municipal property on Main Street. Once again, I do not see the relevance of this evidence to the issue of whether Mr. Freitag experienced discrimination because of disability as a result of the absence of a sidewalk on the east side of Main Street in front of the Angel Gate plaza.
Finally, the applicant states that he wants to call the Town’s Director of Public Works to provide documents showing the public property in front of Georgian Manor. As a result of the evidence given by Mr. Freitag at the hearing, it is now clear that Mr. Freitag’s complaint is about the curb cut at the corner of Robert Street and Harriet Street and does not relate to the paved ramp leading up to Georgian Manor. The Town has agreed that the sidewalk is its property and responsibility. Hence, I do not see the relevance of this proposed testimony.
16Following the directions given by me at the hearing on August 2, 2012 and as confirmed in my CAD dated August 7, 2012, the Tribunal received correspondence from the applicant Mr. Frietag dated August 30, 2012 and certain further correspondence from Mr. Frietag to various individuals that was forwarded to the Tribunal by fax on September 8, 2012.
17In his August 30, 2012 letter, Mr. Frietag asked to be advised as to when and how to obtain evidence from two persons from the municipality. In a CAD that I issued on September 12, 2012, I noted that this issue had been addressed at the hearing on August 2, 2012 and in my CAD dated August 7, 2012. I reiterated that, as I had stated in my previous CAD with regard to other witnesses that the applicants proposed to call in support of their case, to the extent that the applicants believe that evidence could be elicited from these individuals in support of establishing a reasonable prospect of proving that they experienced discrimination because of disability, then the applicants’ submissions could set out what relevant evidence they believe would be elicited from these individuals.
18I further clarified that, in their submissions, the applicants were not being asked to actually present evidence from these individuals, but simply to indicate what relevant evidence they believe would be elicited from these individuals, being mindful of their obligation to prove that they personally experienced discrimination because of disability arising out of the various situations raised in the 13 Applications, as opposed to the respondent’s burden of proving (if the applicants establish discrimination) either that the applicants’ needs could not be accommodated or that it would cause undue hardship to the respondent to do so.
19With regard to the further correspondence sent to the Tribunal by fax on September 8, 2012, I noted that I was aware that in relation to Application 2011-09446-I, an issue had been raised by the respondent that the building at issue is under the control of the federal government and that the washroom at issue is restricted to licensed boaters. I indicated that I was aware that this is disputed by the applicant. However, I indicated that, at this stage of the proceeding, I did not need evidence to be presented by the applicant on these ancillary issues. The issue I wanted the applicant to address in his submissions was, based upon the evidence I heard from him at the hearing on August 2, 2012, whether he personally experienced discrimination because of his disability arising out of his attempt to use the washroom facility at issue.
20In my CAD dated September 12, 2012, I noted that the respondent had filed its written submissions on September 7, 2012 in accordance with my direction. I reminded the applicants of their obligation to file their submissions in response by September 28, 2012.
21The applicants did not do so, but instead sent a series of further correspondence to the Tribunal. I addressed this correspondence in yet a further CAD dated October 15, 2012.
22By letter dated September 14, 2012, Mr. Freitag wrote to the Tribunal to state that he was not given his right to question staff of the respondent municipality, and that therefore no ruling should be made in these matters as he is not able to properly respond. In my CAD dated October 15, 2012, I noted that, to the contrary, as explained to the applicants at the hearing and as repeated in my previous CADs, the issue raised at this stage is whether the applicants have a reasonable prospect of success in establishing any violation(s) of the Code. I further indicated that, as I also had explained to the applicants at the hearing and in my previous CADs, if they believe that evidence would be elicited from witnesses other than themselves that would help them establish a reasonable prospect of success, then they could indicate this in their written submissions and state what relevant evidence they expect to elicit from these witnesses.
23In his September 14, 2012 letter, Mr. Freitag also made reference to s. 6 of the Charter and his right to walk anywhere in Canada where doing so is not prohibited. Without ruling on the issue of the proper interpretation of s. 6 of the Charter, I noted that this was an argument that the applicants could make in their final written submissions.
24Mr. Ogilvie also sent a letter to the Tribunal dated September 21, 2012, requesting the questioning of a respondent witness as a matter of “fundamental justice”. In my CAD dated October 15, 2012, I noted that this issue had been addressed by me four times now: once at the hearing, in my two previous CADs, and again in the October 15, 2012 CAD. Mr. Ogilvie stated in his letter that some evidence regarding what property is under the control of the respondent municipality and what is under control by the County had come to light, and he wanted to question this witness about it. In my CAD, I advised Mr. Ogilvie that this was not necessary at this stage of the proceeding. I indicated that, as part of his submissions, Mr. Ogilvie could simply state what this evidence is (or what relevant evidence he expects to elicit from this witness) and why he believes that such evidence supports that he has a reasonable prospect of success in establishing a violation of the Code as alleged in his Application.
25In my CAD dated October 15, 2012, I stated that I was prepared to afford the applicants one final opportunity to serve and file their written submissions on the issues as set out in my August 7, 2012 CAD. The applicants were directed to do so within 14 calendar days (or by October 29, 2012). If the applicants failed to do so, I stated that I may deem the Applications to have been abandoned or I may proceed to decide the issues before me without the benefit or consideration of the applicants’ submissions.
26No submissions were filed by the applicants by October 29, 2012. Rather, on October 18, 2012, Mr. Freitag sent yet a further letter to the Tribunal alleging that he had been denied his fundamental rights under section 7 of the Charter, on the basis that he had not been permitted to question the witnesses of the respondent. I do not agree that the applicants have been denied any rights under section 7 of the Charter or as part of their common law right to procedural fairness. In any legal proceeding, at the end of the claimant’s case, a responding party is entitled to ask that the case be dismissed for failure to make out a prima facie case. If a claimant has not made out a prima facie case, then a responding party is not required to call any witnesses and the case is dismissed. In the courts, this is referred to as a motion for non-suit.
27At this Tribunal, for reasons articulated in our caselaw, we have moved away from using the language of whether an applicant has made out a prima facie case to assessing whether an applicant has a reasonable prospect of success in establishing a violation of the Code. But this does not take away from an applicant the burden of bringing forward evidence to establish that his or her rights under the Code have been violated. In the instant case, questioning the respondent’s witnesses would not assist the applicants in explaining to me how they allege that their own personal rights under the Code were infringed by the Town in relation to the specific issues raised in the 13 Applications. I have expressed this to the applicants repeatedly.
28Prior to the hearing, the applicants were required under this Tribunal’s Rules to file a list of all witnesses they intended to call to give evidence at the hearing and to provide a summary of each witness’ expected evidence. I reminded the applicants of this obligation in a CAD dated June 26, 2012 and the applicants provided their list of witnesses on July 5, 2012. Apart from the applicants themselves, the applicants indicated that they intended to call three additional witnesses, all of whom were Town officials. I addressed each of these three additional witnesses in my CAD dated August 7, 2012 (as set out above) and set out why I did not believe that the evidence the applicants proposed to elicit from these individuals was helpful in addressing the issue of whether the applicants had a reasonable prospect of success in establishing that their rights under the Code had been infringed. If the applicants disagreed with me, they were free to indicate why in their written submissions. If the applicants wanted to call additional witnesses as part of their case in order to help establish that their rights under the Code had been infringed, they could have raised this as part of their written submissions and I would have considered whether to allow such further witnesses to be called, after having received any submissions from the respondent. But the applicants did not do any of this, and ignored this Tribunal’s direction for them to file written submissions on the issue of whether they have a reasonable prospect of success.
29I have decided that, in light of the correspondence from or on behalf of the applicants, it would not be appropriate for me to dismiss the 13 Applications as abandoned. Accordingly, as stated in my CAD dated October 15, 2012, I will proceed to consider the issues raised in each Application and whether the applicants have established that they have a reasonable prospect of success, without the benefit of any submissions from the applicants.
Evidence of disability
30In a CAD dated June 26, 2012, I raised the issue that the respondent was disputing whether the applicants have a disability and made it clear to the applicants that it was their responsibility to disclose and file relevant medical documents on this point. As I stated at para. 9:
An issue has been raised by the respondent in this proceeding as to whether the applicants have a disability. In various of his Applications, Mr. Freitag has indicated that he is prepared to provide medical reports or letters confirming the nature of his disability. This is documentation that also must be disclosed for the purpose of the hearing. While Mr. Freitag has raised privacy concerns regarding the disclosure of such medical information, this is a necessary component of an allegation of discrimination because of disability contrary to the Code. I note that under the Tribunal’s Rules, such documents can only be used for the purpose of the hearing and not for any other purpose. The same disclosure requirement applies to Mr. Ogilvie.
31In the June 26, 2012 CAD, I directed the applicants to disclose to counsel for the respondent, and file with the Tribunal within 14 calendar days (or by July 9, 2012), “any medical reports or letters confirming the nature of their disabilities and any restrictions or limitations caused by their disabilities”.
32Notwithstanding this direction, no medical reports or letters were filed by the applicants at any time prior to the commencement of the hearing, nor had even been brought to the hearing when it commenced on August 2, 2012. Mr. Freitag had to go back to his home to retrieve these medical documents, which were then produced upon his return. Despite the applicants’ clear failure to comply with the Rules and the direction given in my June 26, 2012 CAD, I nonetheless permitted the applicants to tender these medical documents into evidence before me and I have considered that evidence.
33Two letters from medical professionals were submitted by the applicant Mr. Freitag in support of his assertion that he has a disability. The first is a letter dated September 1, 2011 from Dr. G.I. Van Rooyen, which states, in its entirety: “Based on the information given by the patient and my direct medical examination, [the applicant] is physically disabled due to several medical condition(sic)”. This letter is of no assistance to this Tribunal. It does not identify the nature of any specific disability that the applicant may have, and more significantly, it does not identify any restrictions or limitations caused by any disability the applicant may have, particularly in light of the issues raised in his various Applications.
34The second letter is from a cardiologist, Dr. Bradley Dibble, dated November 2, 2011. This letter states that the applicant had bypass surgery in 2003 and an aortic valve replacement in 2004. The letter indicates that the applicant experiences exertional shortness of breath and poor energy levels, but is still able to be active and simply needs to have brief rests. The letter records that the applicant “still actually considers himself above average for his age with respect to his physical capacity”.
35When asked at the hearing to describe the specific nature of his disability and what restrictions or limitations he has as a result, the applicant testified that most of all it is his legs, his knees and his heart. He states that he can walk for a little bit, but this becomes impossible as soon as he goes downhill or down stairs. He states that he cannot walk up or down stairs at all, though if he has two handrails, he can pull himself up or down. With regard to his heart, the applicant states that he runs out of air because the heart valve is too small. He states that all he knows is that there is no air, no air means no blood, and no blood means no energy. He states that he will work at something, and then 10 minutes later, he needs to sit down.
36While the issue of shortness of breath and poor energy levels is supported by the letter from the applicant’s cardiologist, there is no medical evidence to support the applicant’s assertion that he has problems with his legs and knees to the extent that he is incapable of walking downhill or up or down stairs.
37With regard to the applicant Bill Ogilvie, he did not submit any medical reports regarding the specific nature of his disability or the limitations or restrictions caused by any disability. Mr. Ogilvie’s evidence regarding his disability and limitations will be addressed below in the context of Application 2008-00964-I.
38Following the hearing and after the respondent had filed its written submissions, Mr. Freitag wrote a letter to the Tribunal, dated September 15, 2012, in which he states that he consents to an examination by “Court appointed physicians” to satisfy any doubts about his disability. A similar letter was sent to the Tribunal by the applicant Mr. Ogilvie, also dated September 15, 2012.
39In a CAD dated October 15, 2012, I reviewed the direction given in my June 26, 2012 CAD and what had occurred at the hearing. I noted that the applicants have had extended notice that the issue of whether they have disabilities that impose restrictions or limitations relevant to the matters raised in the Applications was in dispute. This was raised by the respondent in various of its Responses to the Applications, and made clear by me in my June 26, 2012 CAD. The applicants have had full opportunity to present relevant medical evidence to the Tribunal, either before or at the hearing. Neither applicant gave notice that they intended to call any medical professional in support of their case. In my October 15, 2012 CAD, I stated that it is not the responsibility of either the Tribunal or the respondent to prove the applicants’ case for them, nor to seek out evidence to rectify any defects in the evidence presented by the applicants at the hearing.
40Accordingly, I will proceed to consider the issue of whether the applicants have a reasonable prospect of success in proving the allegations raised in the 13 Applications on the basis of the evidence presented by them at the hearing regarding the specific nature of their disabilities.
Application 2008-00963-I
41The issue raised in this Application arises from the absence of a sidewalk on the east side of Main Street in the Town (which is part of Highway 93) from Edward Street to Thompson Road. The applicant states that this resulted from a decision made by the Town in 1991 to allow the developers of Angel Gate Plaza, which occupies this area on the east side of Main Street, to use the area reserved by the Town for a sidewalk to become part of the plaza’s parking lot.
42The applicant alleges that this amounts to discrimination against him because of disability on the basis that the absence of a sidewalk on this stretch of Main Street requires him to cross Main Street in order to use the sidewalk on the west side of the street and then cross back over again after traversing the stretch where there is no sidewalk on the east side. The applicant states that his disability prevents him from safely crossing Main Street even at a traffic light, especially in winter. He states that crossing the highway in ice and snow is simply impossible for him. He testified that he has never crossed Main Street even using the lights in the last 10 years.
43On the specific date in question cited in his complaint, which is December 8, 2008, the applicant testified that he drove downtown and parked on Edward Street. He states that he wanted to go to an unidentified restaurant to see what they had to eat. He states that this restaurant was not in the Angel Gate Plaza, but was somewhere on the east side on Main Street on the other side of the plaza from where he had parked. In order to get to this restaurant, the applicant states that he would have had to cross the highway, walk along the sidewalk on the other side, then cross back over again and walk to the restaurant. He states that he walked from where he parked his car to the traffic light, and then gave up when he saw the traffic and the snow and returned to his car. He states that he did not walk through the Angel Gate Plaza, because it is private property and he would be trespassing and because it would have required him to walk through the plaza parking lot, which he feels is unsafe.
44The applicant testified that he walked 80 or 90 feet from where he parked his car to the point where he gave up and then returned to his car, making the total distance he walked to be 160 or 180 feet. On the basis of the aerial photograph of this section of Main Street submitted by the respondent, it appears that Main Street at this point is 14 metres wide or 46 feet. On the basis of the evidence before me, I am not satisfied that the applicant has established that he has a disability that would restrict him from safely crossing Main Street and using the sidewalk on the other side of the street. While it may have been more convenient for the applicant to be able to use a sidewalk on the east side of Main Street in order to traverse this stretch, I do not find that the applicant has a reasonable prospect of establishing that this amounts to discrimination against him because of disability.
45Accordingly, Application 2008-00963-I is dismissed.
Application 2008-00964-I
46This Application is filed by the applicant Bill Ogilvie and arises out of the fact that there is no paved sidewalk on the west side of Highway 93 near where Mr. Ogilvie lives. Mr. Ogilvie states that there is only a narrow dirt path, and that in the winter there is no snow or ice removal on this path on south from Thompson Road in the direction of his residence.
47Mr. Ogilvie testified that he had a knee replacement several years ago, and following that has never been able to walk the same distance without a lot of pain. Mr. Ogilvie testified that in addition to that, he had bypass surgery about a year and a half ago, which was fairly successful, but even now he gets a bit breathy, though he hopes that will disappear. Mr. Ogilvie did not file any medical reports.
48Mr. Ogilvie alleges that it is discrimination against him because of disability for the Town to have failed to provide a sidewalk along the highway where he lives. He states that, as a result and particularly in winter, people are required to walk on the highway, which is unsafe. He particularly stated that this was a cause of tragedy in his own family, as his wife slipped on the ice when she was walking along this stretch of highway in winter and injured her back and hip, which caused her to suffer excruciating pain up until the time she died. He states that the lack of a sidewalk affects him personally because he no longer travels on the east or west side of Highway 93, which he used to do on his daily trips into Town.
49Mr. Ogilvie states that he has owned his property since about 1975, and there has never been a sidewalk along Highway 93.
50Mr. Ogilvie’s evidence was unclear as to whether or not the area in front of his property is under the jurisdiction of the Town or the County of Simcoe. He testified that he pays his taxes to the Town, and he submitted some water bills paid by him to the Town.
51In any event, O.Reg. 586/06 under the Municipal Act, 2001 provides a comprehensive scheme for the undertaking of work as a “local improvement”, which includes the construction of a sidewalk. Pursuant to this regulation, a municipality may undertake work as a local improvement by levying a special charge on lots that abut the work and/or lots that will be immediately benefited by the work, after giving the requisite notice to the public and to the owners of lots liable to be specially charged. If a petition opposing the work is filed by at least two-thirds of the owners representing at least one-half of the value of the lots liable to be specially charged, then the municipality cannot undertake the work as a local improvement for at least two years unless it applies to the Ontario Municipal Board. Lot owners may also file a petition in favour of a municipality undertaking work as a local improvement.
52Mr. Ogilvie testified that he formerly was a member of the Midland Town Council, and as such was appointed to the County of Simcoe Council. He states that in this capacity, he had raised the issue of a lack of a sidewalk along Highway 93, but had not made any formal presentations on the issue.
53In my view, and in light of the comprehensive scheme under the Municipal Act to petition a municipality to construct a sidewalk as a local improvement, it is not the appropriate role of this Tribunal to intervene and find that the lack of a sidewalk in a particular area constitutes a violation of the Code in the absence of evidence that Mr. Ogilvie sought to access and utilize the established process available to him to have a sidewalk constructed as a local improvement. As stated in Howson v. Ottawa (City), 2012 HRTO 946 at para. 17:
The applicant argues that because her claim for front yard parking is based on a human rights ground, she should not be required to go through the Committee of Adjustment process, or at least she should not have to pay the application fee. I disagree. The applicant provided no legal support for the proposition that where a claim is advanced, based on a Code ground, normal processes and procedures do not apply. While section 47(2) of the Code provides that the Code has primacy over other legislation, it does not say that where a Code issue is engaged, all other legislative procedures are supplanted.
54Similarly, in the specific circumstances of the case before me, in my view it is not appropriate for Mr. Ogilvie to try to use the human rights process to supplant the legislative procedures to petition for construction of a sidewalk as a local improvement under the Municipal Act.
55Accordingly, in the absence of any evidence that Mr. Ogilvie has sought to petition the Town to construct a sidewalk by his home as a local improvement under the Municipal Act, I find that this Application has no reasonable prospect of success and the Application is hereby dismissed.
Application 2008-01034-I
56This Application deals with the Town arena and raises a number of issues. First, the applicant raises issues about parking: that there are only three disabled parking spaces; that they are located in front of the building with a traffic lane separating the parking spaces from the entrance; that they are located on a slope; and that on one occasion in December 2008, there was snow and a slippery surface on the walkway to the entrance. Second, the applicant alleges that the men’s washroom at the Town arena is not barrier-free. Third, the applicant raises an issue about a door leading to the elevator which he alleges has an inadequate width (79 as opposed to 86.5 cm), and about a second door leading to the elevator which he alleges also has an inadequate width (80 as opposed to 86.5 cm). Fourth, the applicant raises an issue about a pair of doors leading to the bleachers on the side where the disabled seating is located, which do not have an automatic door opener and which have an automatic door closer. Fifth, the applicant raises an issue about the fire exits in the area set aside for disabled seating. The issue raised is that in event of a fire that blocked the main exit ramp, a disabled person would have to ascend the risers to get to the alternate fire exit.
57An issue arose at the hearing as to whether the issues raised in this Application already had formed the subject-matter of a previous complaint by the applicant to the Ontario Human Rights Commission, and so were barred by s. 53(8) of the Code. At the time of the hearing, I had before me a report from an accessibility consultant retained by the Town in 2008 to review various accessibility issues raised by the applicant relating to the Town arena, which addresses most of the issues raised by the applicant in Application 2008-01034-I. This report states that it was written in response to the Town’s request for a review of accessibility and/or barriers to persons with disabilities at the Town arena, as per a complaint filed by Mr. Freitag with the Commission with file no. LHOR-6NHQF9. The report then states that it will proceed to address the various issues raised by Mr. Freitag as presented in his “letter of complaint dated June 27, 2007”. The report then proceeds to address 10 items that appear to be quoted from Mr. Freitag’s June 27, 2007 letter. However, neither the letter from Mr. Freitag dated June 27, 2007 nor complaint LHOR-6NHQF9 were in evidence before me. When asked whether he could recall whether the items addressed in the accessibility report were the issues raised in a complaint filed by him with the Commission, the applicant testified that he does not believe that the accessibility consultant invented the issues addressed in her report, but he was unable to confirm whether these issues were raised in his complaint in the absence of the actual complaint document.
58Since the hearing, the Tribunal has obtained from the Commission a copy of complaint LHOR-6NHQF9. The sole issue raised in this complaint is the lack of a barrier free entrance to the arena and the need for an electric door opener. To date, the Tribunal has been unable to obtain from the Commission a copy of the June 27, 2007 letter referenced in the accessibility consultant’s report. On the basis of the evidence before me, I have insufficient evidence to conclude that that the subject-matter of Application 2008-01034-I already had been raised in a complaint filed with the Commission. Accordingly, I have insufficient evidence to find that this Application is barred by s. 53(8) of the Code.
59With regard to the first issue, the applicant states that the disabled parking spots at the arena are not on a level surface. This is supported by the report of the accessibility consultant, who recommends that the parking spaces be modified in accordance with the standards set out in the Canadian Standards Association Barrier-Free Design B561-95 guidelines (the “CSA guidelines”). While the disabled parking spots at the arena may not conform to the CSA guidelines (at least at the time in 2008), this does not mean that the applicant’s rights under the Code necessarily have been infringed. The issue under the Code is whether the slope of the disabled parking spots created a barrier for the applicant because of a need arising from any disability he may have.
60The applicant states that he measured the slope of the disabled parking spots to be at a grade of 7%. That may be. But what I do not have before me is any medical evidence to support that the applicant has a disability that prevents him from walking on a 7% grade. The applicant has asserted this in his own evidence, but has failed to present any medical evidence to support that he has a disability that creates a restriction or limitation of this nature, despite having offered to provide such medical evidence in various of his Applications and despite being directed to provide such evidence at the hearing. Accordingly, I find that the applicant does not have a reasonable prospect of establishing that the slope of the disabled parking spots amounts to discrimination against him because of any disability he may have.
61With regard to the remaining issues raised by the applicant in relation to the location of the disabled parking spots, I fail to see how these issues give rise to a violation of the applicant’s rights under the Code. The disabled parking spots are located near the main doors to the arena. There is a fire lane that prevents the parking spots from being located any closer to the building. The applicant in his evidence did not identify any particular burden or disadvantage that he experienced arising from any disability that he may have due to the location of the disabled parking spots. Rather, he simply expressed his view that the disabled parking spots would be better located to the rear of the arena. While that may be his opinion, that is not a sufficient basis to establish that his rights under the Code were infringed.
62With regard to the issue of the number of disabled parking spots, once again the applicant did not provide evidence to establish how he experienced any particular burden or disadvantage arising from the number of spots. On the one specific occasion raised from December 2008, the applicant was able to park in a disabled parking spot; the issue he raised was that he slipped when he got out of his car. Finally, with regard to the issue of clearing ice and snow from the disabled parking spots and the route to the main door, the applicant stated that he had no basis to dispute the evidence proposed to be given by the Town that the parking lots are plowed and salted regularly by municipal staff. Accordingly, I find that the applicant does not have a reasonable prospect of establishing that any of the other issues he has raised regarding the disabled parking spots at the Town arena amount to a violation of his rights under the Code.
63With regard to the remaining issues raised by the applicant in relation to the Town arena, his evidence is that when he attended the arena in December 2008 and slipped when he got out of his vehicle, he got back into his vehicle and drove away. He did not go into the arena on that occasion. When asked on cross-examination when was the last time he had actually gone into the arena, he stated that it was about 10 years ago. Pursuant to s. 34(1) of the Code, an Application is to be filed within one year of the incidents to which the Application relates. While the incident in the parking lot occurred in December 2008 shortly before the applicant filed this Application, it appears that the other incidents harken back to some 10 years ago. In my view, given the significant gap in time, there is no proper basis upon which these other issues can be regarded as a “series of incidents” within the meaning of s. 34(1)(b) of the Code, that extends to and encompasses the incident in the parking lot. Nor has the applicant provided any good faith explanation for the delay in raising these issues, within the meaning of s. 34(2) of the Code. This is particularly the case in light of the letter that apparently was written by the applicant in June 2007 as quoted in the accessibility consultant’s report, in which it appears that he raised many of the issues addressed in his Application. Accordingly, I find that the remaining issues raised by the applicant relating to the Town arena should be dismissed for delay.
64The importance of raising issues under the Code in a timely manner is accentuated by the evidence that is proposed to be given by the Town in relation to its ongoing efforts to improve the accessibility of the arena. The Town has identified as a proposed witness its Manager of Recreation Services, who proposed to testify: that the arena has an upper washroom that is barrier free and unisex; that accessible seating in the arena was provided when the arena bleacher project was completed in 2008 and the risers comply with all Building Code requirements; that renovations to the arena door were completed in 2010 and comply with all accessibility standards; that the office, lobby, hallway, dressing room hallway and Brian Orser lounge were all completed in 2011 and comply with the Building Code, Fire Code and accessibility standards; that the door leading to the elevator was removed in 2011; that the door leading to the office and lobby was removed and widened in 2011; and that preliminary work on the men’s washroom was begun in 2012 and final work will be done in 2013. While I have not, at this stage of the proceeding, heard the evidence of this witness, I do not understand the basis upon which the applicant would be able to challenge or refute this evidence, given that he states he has not actually been inside the arena for the past 10 years.
65Further, with regard to the issue of the men’s washroom not being barrier free, it was put to the applicant that there is a unisex washroom on the second floor of the arena that is barrier free. When asked why he did not use that washroom, the applicant replied that he did not want to go upstairs. Whether or not the applicant has a disability that impaired his ability to use the men’s washroom on the main floor of the arena when he was there 10 years ago, I find that his needs could have been met by going to the barrier free washroom on the second floor, which the applicant simply chose not to do. In my view, the applicant has no reasonable prospect of establishing that his rights under the Code were infringed arising from this issue.
66With regard to the third issue raised by the applicant, which relates to the width of two doors leading to the elevators, the applicant conceded in his evidence that the width of these doors did not in fact present a barrier for him because of any disability he may have. Rather, his concern generally was about a failure to comply with accessibility standards for door width. That is not a basis upon which the applicant is able to assert that his rights under the Code were infringed. As a result, I find that the applicant has no reasonable prospect of establishing that his rights under the Code were infringed arising from this issue. Further, as noted above, the Town’s proposed evidence is that these doors have been removed and/or widened, and the applicant conceded in his evidence that he has no basis to dispute this.
67The fourth issue raised by the applicant relates to a pair of doors leading to the bleachers on the side where the disabled seating is located, which do not have an automatic door opener and which have an automatic door closer. The applicant alleges that this affects him because of his disability because he has to push very hard to open the doors and then if he does not move very quickly, they hit him in the back. The medical evidence before me is insufficient to establish that because of any disability the applicant may have, he is impeded in his ability either to open this door or to move through the door without being hit. As a result, I find that the applicant does not have a reasonable prospect of establishing that his rights under the Code have been infringed as a result of this issue.
68The final issue raised in this Application relates to the fire exits in the area set aside for disabled seating. There is no dispute that the main route to access this disabled seating is accessible, and in the event of any fire, persons with mobility impairments would be able to exit through the main doors. The issue raised by the applicant is that, in event of a fire that blocked the main ramp, he and other persons with mobility impairments would have to ascend the risers to get to fire exits. The applicant alleges that this discriminates against him because of disability because he is unable to ascend the risers to the alternate fire exit. He states that the steps on the risers are 8 3/8”, which is too much for him to get up. Once again, I simply have no medical evidence before me to confirm that, because of disability, the applicant is unable to surmount a set of stairs with an 8 3/8” rise. As a result, I find that the applicant does not have a reasonable prospect of establishing that his rights under the Code have been infringed arising from this issue.
69I further note that, in many buildings in Ontario that are otherwise accessible, there often are issues confronted by persons with mobility impairments in the event of a fire alarm. For example, in any high rise office tower, persons in the building are unable to use the elevators in the event of a fire alarm and must exit by the stairs. This obviously is impossible, for example, for a person who uses a wheelchair. The standard procedure is for such persons to be identified by a fire marshall on the floor and to await assistance in exiting the building. The possibility that such a situation may arise has not been found to constitute a violation of the Code. In the case of the Town arena, there already is at least one exit that would be accessible in the event of a fire. It is only the alternate fire exit that the applicant alleges is inaccessible. Regardless of the nature of the applicant’s disability, I find that he does not have a reasonable prospect of establishing that such a situation amounts to a violation of the Code.
70Accordingly, this Application is dismissed both on the basis that the applicant does not have a reasonable prospect of establishing that his rights under the Code have been infringed on the basis of any disability he may have, and, with regard to issues two to five, also on the basis of delay.
Application 2009-01589-I
71The issue raised in this Application is the absence of a sidewalk on Lorne Avenue in the area where the applicant lives. The applicant testified that he has lived on this property for 50 years, and there has never been a sidewalk that extends to his property. His complaint is that, further down the road on Lorne Avenue, there is a brand new sidewalk. However, this new sidewalk does not extend to his property.
72The applicant alleges that this discriminates against him because of disability on two bases. First, he states that his mailbox is on the side of the road. The area leading up to the side of the road is unfinished, and consists of gravel, sand and some weeds. He states that the sand and gravel is sometimes washed out when it rains. He states that he likes to walk to get his mail if it is good weather, but on one occasion he fell and now he takes either his car or his tractor to get the mail if there is bad weather. Second, he states that if he wants to walk down Lorne Avenue towards the Town, he needs to walk on the road due to the unfinished shoulder and lack of a sidewalk, which exposes him to being run over by a passing car. His evidence is that since he has had a disability, he has not attempted to walk down Lorne Avenue from his property to the area where there is a sidewalk.
73As previously stated in relation to Application 2008-00964-I above, O.Reg. 586/06 under the Municipal Act, 2001 provides a comprehensive scheme for the undertaking of work as a “local improvement”, which includes the construction of a sidewalk. When this was raised with the applicant on cross-examination, he stated that he was not aware that he could petition the Town to build a sidewalk in the area abutting his property or that, if he brought such a petition, he and his neighbours would need to pay for the cost.
74As stated above, in light of the comprehensive scheme under the Municipal Act to petition a municipality to construct a sidewalk as a local improvement, it is not the appropriate role of this Tribunal to intervene and find that the lack of a sidewalk in a particular area constitutes a violation of the Code in the absence of evidence that the applicant sought to access and utilize the established process available to him to have a sidewalk constructed as a local improvement. As stated in Howson v. Ottawa (City), 2012 HRTO 946 at para. 17:
The applicant argues that because her claim for front yard parking is based on a human rights ground, she should not be required to go through the Committee of Adjustment process, or at least she should not have to pay the application fee. I disagree. The applicant provided no legal support for the proposition that where a claim is advanced, based on a Code ground, normal processes and procedures do not apply. While section 47(2) of the Code provides that the Code has primacy over other legislation, it does not say that where a Code issue is engaged, all other legislative procedures are supplanted.
75Similarly, in the specific circumstances of the case before me, in my view it is not appropriate for the applicant to try to use the human rights process to supplant the legislative procedures to petition for construction of a sidewalk as a local improvement under the Municipal Act.
76Accordingly, in the absence of any evidence that the applicant has sought to petition the Town to construct a sidewalk by his home as a local improvement under the Municipal Act, I find that this Application has no reasonable prospect of success and the Application is hereby dismissed.
Application 2009-02300-I
77The issue raised in this Application is the alleged failure of the Town to enforce its disabled parking bylaw. The applicant states that the basis of this Application is that on some occasions he has seen vehicles parked in disabled parking spaces without a proper sticker, and he waited for someone to come and move the vehicle but no-one came. As a result, he states that there was no disabled spot for him to park, so he gave up and went home.
78When asked how this was connected to a claim against the Town, the applicant stated that it is the Town’s responsibility to look after law and order. While acknowledging that a by-law enforcement officer would not be able to catch every person parking illegally, the applicant testified that he did not know whether the Town even had a by-law enforcement officer. When it was pointed out to him that one of the Town’s proposed witnesses is a named individual identified as a Municipal By-law Enforcement Officer for the Town and that the Town’s documents indicate that it has been taking steps to address such issues at least since 2011, the applicant responded that he does not dispute that the Town has a bylaw enforcement officer, but states that the Town says that the Ontario Provincial Police (“OPP”) look after this issue, but the OPP say they do not. In fact, the Town’s Response states merely that the OPP is empowered to issue provincial offences tickets to anyone parking in a disabled parking spot without a proper permit, but also states that the Town itself provides a by-law enforcement officer on an as-needed basis, and responds to complaints and takes enforcement steps where warranted.
79I asked the applicant whether the existence of a by-law enforcement officer at the Town who appeared to be taking steps to enforce the disabled parking by-law satisfied his claim. The applicant responded that he believes that the by-law enforcement officer is doing his job, so this Application possibly has been resolved. But he states that one needs to think back to 2009 when he filed the Application.
80The only remedy sought in this Application is to “ensure the rule of law”. I have in evidence before me a copy of the Town’s disabled parking by-law, and the Town has identified its by-law enforcement officer and has provided documents indicating that he is taking steps to enforce this by-law. The applicant has not provided any basis in his evidence to challenge this, apart from his observation that on a few occasions, vehicles without proper permits were parked in disabled parking spots.
81In my view, in these circumstances, the applicant has no reasonable prospect of establishing a violation of his rights under the Code nor has he provided support for the remedy sought.
82Accordingly, this Application is dismissed.
Application 2009-03199-I
83The issue raised in this Application is that the sidewalks on Church Street narrow to approximately half the width of the normal sidewalk when traversing driveways.
84The applicant alleges that this discriminates against him because of disability on the basis that if he steps off the level portion of the sidewalk onto the driveway, he drifts a little bit and gravity pulls him towards the roadway. There is one specific occasion cited in his Application where the applicant states that he stepped aside to allow a woman to pass and tumbled into the roadway. He states that the cross slope of the driveway is 17%, which he is not able to safely traverse. He states that the level portion of the sidewalk, which is 88 cm in width, is not enough for him to walk safely.
85The medical evidence provided by the applicant is insufficient to establish that he is unable to safely walk on a level sidewalk that is 88 cm in width. I fail to see any disadvantage or burden because of his disability that the applicant is able to establish in relation to this portion of sidewalk. In my view, this Application has no reasonable prospect of success.
86Accordingly, this Application is dismissed.
Application 2009-03322-I
87This Application raises a number of issues, several of which the applicant conceded have been resolved.
88The one outstanding issue arising from this Application relates to two marked disabled parking spaces on Peel Street, which the applicant says has a cross slope of 7% as opposed to a 2% standard. The applicant states that on the occasion raised in his Application, he wanted to go shopping and this was the nearest place for disabled parking spots. He states that he opened the door to his vehicle and there was a little bit of snow, and he slipped and fell down. He states that he has never parked on Peel Street after this. His evidence is that he is unable to stand or walk on a 7% cross slope.
89The medical evidence provided by the applicant is insufficient to establish that he is unable to safely walk on a 7% cross slope. In my view, the applicant has no reasonable prospect of success in establishing that the nature of these disabled parking spots discriminates against him because of disability.
90Accordingly, this Application is dismissed.
Application 2010-04704-I
91The issue raised in this Application relates to a deputation given by the applicant to Town Council on January 27, 2010. The applicant states that he was given 10 minutes to make his deputation, but was experiencing difficulty in making his deputation within the allotted time due to disability. At a certain point, the Mayor informed him that he had one more minute to conclude. The applicant believes that he should have been given an additional two or three minutes.
92The applicant was unable to state in his evidence whether he had requested more time because of his disability. Rather, he states that a public servant such as the Mayor should have known what to do.
93The medical evidence before me does not provide support for the applicant’s assertion that he required more time to make this deputation due to disability. Further, the applicant’s evidence does not support that he made a request for additional time because of any disability, or that any such request was refused. In these circumstances, it is my view that the applicant has no reasonable prospect of establishing that he experienced discrimination because of disability arising out of this incident.
94Accordingly, this Application is dismissed.
Application 2010-04480-I
95This Application relates to the location of a push button to activate the main door at the Town’s public library. This button is located behind a security screen and requires an individual to push the button to activate the door and then walk around the screen to exit.
96The applicant alleges that this discriminates against him because of disability on the basis that, before the security screen was there, he could push the button and go through the door, but now he has to make his way around the barrier. He states that if he is slow, the door may close, but it may not.
97In the Application, the applicant states that it is “cumbersome” for him to activate the door and exit. In response to a question as to whether he was able to do so, the applicant stated that he can activate the door, but maybe it closes when he gets there, maybe not. He states that there was one case when he was a little slow and had to push the door to get out. He states that he was able to do this, but had to use force to get out.
98In his Application, the applicant states that he is concerned more about disabled persons with walkers or wheelchairs, but agreed that he did not currently use either a walker or a wheelchair.
99The medical evidence before me is insufficient to establish that the applicant is incapable to activating the button and exiting through the main door because of needs arising from a disability. In my view, the applicant has no reasonable prospect of success in establishing that his rights under the Code have been infringed arising from the location of the activation button.
100Accordingly, this Application is dismissed.
Application 2010-05118-I
101The issue raised in this Application is about the cross slope and running slope of the sidewalk at the intersection of Robert Street and Harriet Street. At issue is the curb cut at this intersection, where the sidewalk slopes down to the level of the road. The applicant states that in this area, the sidewalk has a cross slope of 15% and a running slope of 20%. He states that he cannot walk there. The applicant agrees that he could walk on the north side of Robert Street, but states that he wants to be able to walk on the south side of the street. When asked what he believed the Town could do to rectify this issue, the applicant stated that the elevation of the road could be made higher so there was less need of so steep a slope from the sidewalk down to the road.
102The medical evidence provided by the applicant is insufficient to establish that he is unable to safely walk on a 15% cross slope or a 20% running slope because of a disability. In my view, the applicant has no reasonable prospect of success in establishing that the slope of the curb cut at this intersection discriminates against him because of disability.
103Accordingly, this Application is dismissed.
Application 2010-05232-I
104The issue raised in this Application relates to the running slope of the sidewalk on Robert Street East at the intersection with Fox Street. The applicant states that there was some re-construction of the sidewalk in this area, and the situation has gotten worse than it was before as the forward slope has increased. The applicant states that he tried to walk along the sidewalk in this area and had to hold on to the bushes because he accelerated forward so fast. The applicant states that he measured the slope of the sidewalk going down to a curb cut to the road, and it is close to 12%. He states that the road itself has the perfect slope going down, but the sidewalk was never leveled in accordance to the road and therefore this horrible drop occurred.
105Once again, the medical evidence provided by the applicant is insufficient to establish that he is unable to safely walk on a 12% slope because of a disability. In my view, the applicant has no reasonable prospect of success in establishing that the slope of the sidewalk in this area discriminates against him because of disability.
106Accordingly, this Application is dismissed.
Application 2011-09219-I
107The issue raised in this Application relates to the running slope of the sidewalk in front of James Keating School on Lorne Avenue, which the applicant states is in excess of 8%. The applicant states that this slope is too steep for him to walk.
108As with the previous two Applications, the medical evidence provided by the applicant is insufficient to establish that he is unable to safely walk on an 8% slope because of a disability. In my view, the applicant has no reasonable prospect of success in establishing that the slope of the sidewalk in this area discriminates against him because of disability.
109Accordingly, this Application is dismissed.
Application 2011-09446-I
110This Application relates to the washroom facilities at the Town Dock, which the applicant alleges were not barrier-free at the time he filed his Application. In particular, the applicant raises an issue about the washroom entrance having a door knob instead of a handle and an issue that the toilet facilities do not conform to barrier-free standards.
111With regard to the door knob, the applicant states that, not every moment but sometimes the arthritis is in his hands and it is much easier to use a door handle than a door knob. The applicant states that he had a problem with the door knob, but was able to open it up. No medical evidence was submitted by the applicant to indicate that he has arthritis in his hands to the extent that he cannot use a door knob, and this was not raised by the applicant when I questioned him at the beginning of his evidence about the nature of his disabilities and any restrictions or limitations.
112When asked how his disability prevented him from using the toilet facilities, the applicant initially stated that there was no grab bar to help him up and that this was all he looked at and then walked away. Later in his evidence, he stated that he needed to relieve himself and did not make use of the facilities because they were not up to standard. When asked specifically what he required, he stated that he required an accessible washroom in accordance with provincial standards. He stated that he would have used the toilet facilities at the Town Dock, but did not do so because they were not appealing to him and not in a condition that a washroom for a disabled person should look.
113On the basis of the evidence before me, I am not satisfied that the applicant has established that he suffered any real burden or disadvantage in relation to any disability he may have arising out of his attempted use of this washroom facility. There is no medical evidence to support that he had a disability that impairs his ability to use a door knob, and he in fact was able to open the door on the occasion in question. While the applicant may indeed use grab bars for his toileting needs, his evidence is inconsistent as to whether he actually required the use of grab bars on this occasion. Rather, it appears to me that the applicant chose not to use this washroom because it was not equipped in accordance with provincial standards for accessible washrooms. Whether or not that is the case, I am not satisfied that the applicant has any reasonable prospect of establishing that he personally experienced any burden or disadvantage due to any disability he may have arising out of this incident.
114Accordingly, this Application is dismissed.
2. PRELIMINARY ISSUES RE REMAINING FOUR APPLICATIONS
115In addition to the 13 Applications addressed above, the Tribunal gave notice that preliminary issues relating to four further Applications filed by the applicant Mr. Freitag against the Town also would be addressed at the hearing on August 2, 2012. Generally, the preliminary issues relating to these four Applications were whether all or some of these Applications should be dismissed as being duplicative and an abuse of process, or as raising issues not within this Tribunal’s jurisdiction, or as being barred by s. 53(8) of the Code.
116Due to the time required on August 2, 2012 to complete hearing the evidence of the two applicants, including cross-examination, the parties did not reach the point of making submissions on the preliminary issues regarding the remaining four Applications. Rather, the parties agreed to make their submissions in writing, with the applicant to file his submissions by September 28, 2012, the respondent to file its responding submissions by October 5, 2012, and the applicant to file any submissions in reply by October 12, 2012. I advised the parties that prior to them making their submissions, I would provide written clarification regarding the precise nature of the preliminary issues in relation to each of the four Applications. I did so in my CAD dated August 7, 2012, and confirmed the deadlines for written submissions from the parties on these preliminary issues.
117No written submissions regarding the preliminary issues raised in relation to these four Applications were received from the applicant by September 28, 2012 or at any time afterward. Notwithstanding that no submissions were filed by the applicant, the Town nonetheless filed its submissions on October 5, 2012. No reply submissions were filed by the applicant.
118In my CAD dated October 15, 2012, I afforded the applicant one final opportunity to serve and file written submissions not only in relation to the 13 Applications addressed above, but also in relation to the four further Applications. The applicant was directed to file any written submissions regarding all or any of these Applications within 14 calendar days, or by October 29, 2012. As noted above, no submissions were filed by the applicant, which is inclusive of no submissions regarding the preliminary issues raised with regard to the four further Applications. While, again as noted above, the applicant sent a letter dated October 18, 2012 alleging a denial of his right to fundamental justice under s. 7 of the Charter because he was not permitted to question the witnesses that the respondent proposed to call, I note that neither party was to call witnesses to address the preliminary issues raised in relation to the four further Applications. Rather, the preliminary issues were to be determined on the basis of the parties’ submissions. As a result, the issue raised in the applicant’s October 18, 2012 letter does not provide any reason or excuse for his failure to file submissions to address the preliminary issues raised in respect of his four further Applications.
119As I have stated above, I indicated in my October 15, 2012 CAD that if the applicant failed to file submissions, I may deem his Applications to have been abandoned or I may proceed to decide the issues before me without the benefit or consideration of his submissions. With regard to the 13 Applications addressed above, I have decided not to find that the applicants abandoned these Applications due to their failure to file submissions, given the correspondence that has been filed by them following the hearing and in response to my CADs.
120However, with regard to the four remaining Applications, none of the preliminary issues raised in respect of these Applications is addressed in the applicant’s correspondence. The preliminary issues did not involve the calling of witnesses by either party. The preliminary issues did not relate to the issue of whether the applicant has a disability or the specific nature of any restrictions or limitations he may have as a result of any disability. Rather, the correspondence filed by the applicant is completely silent on the preliminary issues raised in respect of the four remaining Applications. In these circumstances, it is my view that I can properly find that the four remaining Applications have been abandoned by the applicant, and they are hereby dismissed on that basis.
121Notwithstanding that finding, I will proceed briefly to address the preliminary issues raised in respect of each of the four remaining Applications.
Application 2011-09081-I
122This Application raises an issue regarding the lack of a sidewalk on Lorne Avenue, which is the same issue raised by Mr. Freitag in Application 2009-01589-I and which is one of the issues about which I heard evidence at the hearing and which was determined and dismissed by me as set out above. I find that Application 2011-09081-I is duplicative and is therefore dismissed as an abuse of process.
Application 2012-11906-I
123This Application raises an issue relating to the Centennial Museum and Archives and alleged non-compliance with the Fire Code regarding plans for evacuation of persons with disabilities from the second floor. The issue of compliance with the Fire Code is not a matter within this Tribunal’s jurisdiction. Accordingly, this Application is dismissed as not being within this Tribunal’s jurisdiction.
124As an additional matter, the respondent submits that this Application was resolved by terms of settlement dated July 28, 2009. I do not agree. The settlement dated July 28, 2009 was a resolution of two matters: Application T-0944-08 in which the applicant raised an issue about the lack of accessible washrooms at the Centennial Museum; and Application 2008-00961-I in which the applicant raised issues about accessibility barriers following the renovation of the Town Hall. While the Town did agree to provide the applicant with a copy of its fire safety plan for the Museum as part of the settlement, he only released the Town from “claims, applications, demands, complaints or actions arising out of the complaint or application in files numbered T-0944-08 and 2008-00961-I” with two exceptions. As the only issue raised in Application T-0944-08 related to the lack of accessible washrooms at the Museum and not any issue as to the evacuation of persons with disabilities from the second floor, I decline to find that Application 2012-11906-I is barred by the settlement dated July 28, 2009.
Application 2012-11925-I
125This Application raises a similar issue relating to the Memorial Community Centre and alleged non-compliance with the Fire Code regarding plans for evacuation of persons with disabilities from the second floor. As stated above, the issue of compliance with the Fire Code is not a matter within this Tribunal’s jurisdiction. Accordingly, this Application is dismissed as not being within this Tribunal’s jurisdiction.
Application 2012-11907-I
126This Application raises two issues relating to the Curling Club. The first issue raised is that part of the building is not barrier free, though no specifics or particulars are provided as to why Mr. Freitag believes that this facility presents barriers for him personally because of disability. The second issue raised in this Application is an alleged lack of a plan for evacuation of persons with disabilities in the event of fire.
127The issue of whether the Curling Club presented barriers for the applicant due to disability was the subject of a complaint by him to the Commission dated July 16, 2007 and was transferred to this Tribunal by an Application under s. 53(3) of the Code dated September 9, 2008 (HRTO file T-0196-08).
128The Tribunal’s file T-0196-08 remains outstanding. While the parties did sign Minutes of Settlement dated November 17, 2008 in HRTO file T-0196-08, the terms provided for the Town to provide the applicant with a plan and schedule for completion of identified accommodations, which was to be approved by the applicant. If the applicant failed to approve the plan and schedule, he was entitled to re-open Application T-0196-08. The applicant did not approve any plan and schedule, and notified the Tribunal and the Town that he wanted to re-open Application T-0196-08 by letter dated February 2, 2009. Application T-0196-08 originally was scheduled to proceed to a hearing on July 28, 2009, but by Interim Decision dated July 2, 2009 was joined with five other applications filed by the applicant and the July 28, 2009 date was converted to a mediation. Since that time, Application T-0196-08 has remained unresolved.
129While the applicant did also file a breach of settlement application alleging a breach of the Minutes of Settlement dated November 12, 2008 (Tribunal file no. 2011-09577-S), this application was dismissed for delay by Decision dated August 28, 2012 (2012 HRTO 1644).
130The issue with new Application 2012-11907-I is that, to extent that it raises issues regarding alleged discriminatory barriers at the Curling Club, this was the subject-matter of Mr. Freitag’s complaint to the Commission dated July 16, 2007. Pursuant to s. 53(8) of the Code, a person cannot file a new Application if the subject-matter is the same or substantially the same as a prior complaint filed with the Commission. As a result, this Application 2012-11907-I is barred by s. 53(8) of the Code.
131In addition, to the extent that Application 2012-11907-I raises issues regarding the Fire Code, this is a matter that is outside this Tribunal’s jurisdiction.
132Accordingly, this Application is dismissed in its entirety.
CONCLUDING REMARKS
133Over the past several years, Mr. Freitag has been engaged in efforts to improve accessibility within the Town and in various Town facilities. These efforts are commendable. But that is an entirely different matter from the issue before me in this proceeding, which is whether the applicants have a reasonable prospect of success in establishing that their personal rights under the Code have been infringed or whether Applications alleging a violation of their personal rights should be allowed to proceed. In the case of the 17 Applications addressed in this Decision, I have found either that the applicants do not have a reasonable prospect of establishing that their personal rights under the Code have been infringed or that the Applications should not proceed for other reasons. In making this finding, I do not intend to detract in any way from legitimate efforts to improve accessibility within the Town.
134In this regard, I note that the Town submitted into evidence before me a copy of its 2009 Accessibility Plan, prepared in accordance with the requirements of the Ontarians with Disabilities Act, 2001. Under that legislation, such plans are to be prepared by municipalities on an annual basis. The 2009 Plan is a comprehensive document that addresses barrier removal initiatives for 2009, barrier removal initiatives in prior years, identified barriers in municipal buildings and facilities, identified barriers in municipal infrastructure, identified barriers in municipal service delivery, and a communication plan and monitoring process. Reasonable people may disagree as to whether the Town is doing enough to increase accessibility or what the priorities for barrier removal should be, given the current economic climate. However, it appears clear to me that the Town is taking the issue of accessibility seriously and is actively taking steps to remove barriers. This too is commendable.
135My hope is that the applicants, and Mr. Freitag in particular, will find a way to channel his efforts more positively and to work collaboratively with the Town on the commendable process of improving accessibility and removing barriers.
Dated at Toronto, this 4th day of April, 2013.
“signed by”
Mark Hart Vice-chair```