HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
James Hanley
Applicant
-and-
Heritage Court Kingston Ltd.
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Hanley v. Heritage Court Kingston Ltd.
APPEARANCES
James Hanley, Applicant
Chantal Tie, Counsel
Heritage Court Kingston Ltd., Respondent
Gerald Pryal, Representative
Introduction
1Heritage Court Apartments is an 80 unit apartment building owned and operated by the respondent in the City of Kingston. Its residents are senior citizens. Despite the number of units in the building, a restrictive covenant on the land title means that there are only seven onsite parking spaces. This is because when it was built, planning permission for the building was granted by the City of Kingston on the assumption that senior citizens would give up their vehicles when they moved into Heritage Court.
2Over time that assumption has proved wrong. A number of residents park their vehicles in a city-owned public parking lot (the “Byron lot”) next to Heritage Court. The applicant is one of them. He has a disability which affects his mobility. In 2011 he made repeated requests to the respondent for an onsite parking place. The respondent refused.
3The applicant brought this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of disability. The Application was heard on April 17, 2013. For the reasons set out below, I find that the respondent discriminated against the applicant on the basis of disability.
background
Preliminary Issues
4There were two issues raised at the start of the hearing which required rulings. I indicated that the reasons for these rulings would be set out in this Decision.
Respondent’s objection to late disclosure
5The Tribunal’s Notice of Confirmation of Hearing advised the parties that they were obliged to deliver their documentary evidence to the other party and file it with the Tribunal by March 4, 2013. The respondent received most of the applicant’s documents on March 6, two days late. On March 8 the respondent received the statement of a witness the applicant proposed to call. A third document, which was an audio recording of a telephone message for the applicant left by the respondent’s employee, was delivered to the respondent on April 3.
6The respondent objected to the admission of any of these documents into evidence on the grounds that they were all delivered late. It argued that it is entitled to expect the Tribunal’s Rules to be applied as they are written, and that if the documents are excluded then the applicant has no evidence to support his Application and it should be dismissed.
7The applicant indicated that the two-day delay in filing its March 6 package was due to a computer problem in counsel’s office and that the late filing of the telephone recording and transcript was an oversight.
8While I asked the respondent to point to specific prejudice it suffered due to the late delivery of the documents on March 6, it could not identify how its preparation for this hearing was impaired by the two-day delay in filing. Because the respondent could not show any prejudice or practical harm in allowing these documents into evidence, I ruled them to be admissible.
9In relation to the telephone recording and transcript, the applicant provided no justification for failing to produce this document in time. Unlike the March 6 package, this was disclosed two weeks before the hearing and left the respondent with less time to address this evidence. For these reasons I ruled that these documents would not be admitted. The issue of the late disclosure of the witness statement did not need to be addressed, as this witness was not called to give evidence.
Applicant’s Request to amend Application
10The applicant was unrepresented when he filed his Application. The remedies he requested at the time were reimbursement of his parking costs from the time he requested an onsite parking place; the allocation of an onsite parking space and a written apology. He was represented by counsel as of January 14, 2013, and made a request to amend his Application on April 9, 2013 by adding a claim for $10,000 as compensation for injury to dignity, feelings and self-respect.
11The applicant argued that allowing the amendment would not change the factual basis that the parties have relied on to prepare for the hearing, that the proposed additional remedy is reasonable and is within the range of what he might be awarded if successful.
12The respondent objected on the ground that the applicant could have brought this request much earlier. He was represented as of January and the respondent had prepared for the hearing on the basis of the remedies set out in the Application as originally drafted.
13The Tribunal has the discretion to allow documents filed by the parties to be amended to provide for the fair, just and expeditious resolution of any matter (See, Rule 1.7(c) and the factors set out in Wozenilek v. 7-Eleven Canada, 2009 HRTO 926, at para. 4 that structure the exercise of that discretion).
14While the applicant should have made this request earlier, it would not broaden the scope of the factual inquiry. There are no additional witnesses or documentary evidence to be introduced and no changes to the conduct of the hearing as a result of the proposed amendment. When asked, the respondent could not identify how it would have prepared differently had it known of this change earlier. The absence of an impact on the scope of the factual inquiry and the lack of prejudice to the respondent in presenting its case led me to conclude that the amendment to the Application should be allowed.
Change to style of cause
15The applicant initially named the respondent as Heritage Court Apartments. As its corporate identity is actually Heritage Court Kingston Ltd., o/a Heritage Court Apartments, the respondent consented to change the style of cause to identify the respondent by its correct title.
The Hearing
Agreed facts
16The applicant testified on his own behalf. Gerald Pryal, who is the director and chief executive officer of the respondent, also testified. The parties agreed on a number of background facts, which I will now set out.
17The Byron lot is immediately adjacent to Heritage Court. Residents of the city, including those living in Heritage Court, can apply for a monthly municipal parking permit at a charge of $70. There are no reserved spaces for permit holders in the Byron lot, and this means that on any given day a permit holder must park wherever space is available. The Byron lot has one space designated for holders of a handicapped parking permit, but this space is for day use only and requires cash payment at the lot’s meter.
18In addition to the seven onsite parking spaces at Heritage Court, there are twelve spaces on the Byron lot which have been handed from tenant to tenant via the respondent. What this means is that the respondent takes it upon itself to pay the city the monthly fee for these spaces and recovers the money from the tenants. Over and above the twelve permits for the Byron lot that, in effect, are administered by the respondent, a number of Heritage Court residents, including the applicant, buy their own permits from the city.
19When an apartment comes vacant in Heritage Court, the respondent advertises the vacancy and indicates that parking is available. It takes care not to advertise the parking as onsite, as the number of those spaces is limited. Rather, the advertised reference to parking implies onsite parking if a space is available when a tenancy agreement is concluded, and parking in the Byron lot if there is no onsite space. The respondent charges tenants $70 per month for parking in its onsite spaces, the same amount as the city charges for parking in the Byron lot.
The applicant’s evidence
20The applicant moved into Heritage Court in 2001. The parties have never had a written tenancy agreement. When the applicant entered into the lease he was told that there was no onsite parking available at that time. Since moving in he has parked his vehicle in the Byron lot.
21The applicant has suffered from arthritis in his lower spine, hips, knees and hands for many years. He had a right hip replacement in 2007 and is on a waiting list to have the left hip replaced. He indicated that the first replacement is causing him problems, as it was done with an implant that is now leaching fragments of metal into his body. He has blood tests every six months to monitor the levels of metal, and if they surpass a critical threshold the implant will have to be removed.
22The effects of arthritis in his lower body cause him to have difficulty walking. He walks with the aid of a cane, is very slow and has great difficulty walking any distances. He maintains that these difficulties are compounded in winter by the obstacles that ice and snow present, as well as his fear of falling.
23In addition to restrictions on mobility, the arthritis makes it difficult for him to grip and hold objects, such as bags of groceries. The applicant testified that his condition leaves him in constant pain. The level varies from day to day, but he always takes pain medication and has been cautioned by his doctor about the risks associated with developing a dependence on it. The applicant’s condition is degenerating and eventually he will lose his mobility. In support of his testimony the applicant referred to reports from his family physician, his rheumatologist and his physiotherapist that span a period from August 2010 to March 2013.
24Since 2011 the applicant has held a handicapped parking permit issued under the Highway Traffic Act, R.S.O. 1990, c. H.8. His vehicle is a large van. It can be parked anywhere in the Byron lot, but if he were to park onsite, the vehicle would only be able to fit in a few of the seven spaces without obstructing the passage of other vehicles in the Heritage Court lot.
25The applicant inquired about obtaining an onsite parking space. He wrote to the respondent on April 27, 2011 stating that he believed an onsite space was coming vacant and requesting that it be rented to him. His letter states in part:
As I have some mobility issues as well as difficulty carrying things; being closer to the building would be an real help to me.
I have lived here for over ten years and feel it is appropriate that I be given the chance for a spot as many shorter term tenants have been given them over the years. This would only be fair.
26As he received no written or oral response to this letter he wrote a second letter on June 6, 2011. This one reads, in part, as follows:
I am again requesting a parking space In the building's parking lot, as I have not received a reply to my original letter of April 27 2011. Please consider my request this time. I understand there are some spaces available due to tenant and vehicle movement.
As stated previously I need to be closer to the building for health reasons.
I will have to assume that lf I don't have a written reply from you by June 20 that you are not interested in helping me with this.
27The applicant testified that he received an oral response to this letter in the form of a voicemail message from the respondent’s property manager, Teresa Romano. The message informed him that he would not be given an onsite parking space now or in the future. It also informed him that Teresa had not taken the decision, but that it was taken by the owner of the building.
28The applicant consulted legal counsel and was advised to write to the respondent again and support his request with medical evidence of his disability. He did this in a letter dated July 14, 2011, which reads:
Hello Teresa,
I am again requesting a parking spot in the building's lot at 179 Queen Street. I refer back to my letters of April 28 and June 7 of 2011 and your response stating that there are no available spots and that “there never will be any". (your phone call of June 8th 2011). I understand that Jack Stacey (sp.?) on the main floor has moved and that would make an spot available (as he was parking his full size pickup there my van would fit as well. It also seems that there might have been other spots available prior to that as well.
Please reconsider my request, and find attached a letter from my doctor that will reinforce what I mentioned before regarding my need for a spot closer to the buildings doors.
Once again I thank you for your consideration in this matter. Again I will request a reply in writing which I really don't think is too much to ask of you. I would like to mention that this is in no way personal, and apologize if you thought that my previous letter was aimed at you in that manner.
29The attached doctor’s letter states:
To whom it may concern ,
My patient, James Kenneth Hanley of Kingston, Ontario would be greatly helped by having a parking space in the building's parking lot at 179 Queen St. He has been parking in the adjacent City of Kingston parking lot (Byron) for over nine years and due to several deteriorating health problems is having difficulty with mobility and carrying groceries etc. from that location. It would be greatly helpful for him to have a spot closer to the main and rear doors of his apartment building.
Thank you for your consideration in this matter.
30The applicant testified that he received no response to this letter.
31The applicant gave evidence about the impact of having to park in the Byron lot. He produced a sketch of the lot that he had drawn, with each parking space numbered in sequence. He also introduced a log he had kept every day from September 25 to November 20, 2012 and then from January 31 to March 4, 2013. The log is cross-referenced to the sketch. For each day it sets out which space the applicant parked in, as well as the distance he walked from that parking space to the elevators in Heritage Court. The log shows that he parked in a wide range of parking spaces, but most were in the two rows closest to Heritage Court.
32The respondent did not take issue with the applicant’s method of calculating the distances to the spaces in the Byron lot, or that he parked where he said he did. The log shows that the one-way distance walked by the applicant from spaces in the Byron lot ranged from 227 to 497 feet. By contrast, the distances from Heritage Court’s onsite parking spaces to the elevators range from 92 to 126 feet. As each log entry only measures the distance one way, the distances need to be doubled to reflect how far the applicant walked to get from the elevators to the vehicle and back.
33On most days from September to November of 2012 there is one log entry per day. In the period from January to March of 2013 slightly more than half of the days have two, and sometimes three, entries. The applicant testified that this is because for three days of the week from December through March the city requires cars in the Byron lot to be moved every 12 hours to allow for snow clearing.
34The applicant testified that walking from the Byron lot to the elevators causes him physical pain and fatigue. It is worse in the winter because of the risk of falling on ice and snow and because he has to make additional trips to the parking lot to move his van to comply with the city’s snow clearing requirements. Carrying packages, such as bags of groceries, over those distances causes him pain in the hands and weakens his grip. He stated that it is possible for residents of Heritage Court to park at the side of the building in designated visitor parking spaces for the purpose of unloading vehicles, but that this is limited to 15 minutes and he is unable to unload his vehicle, go up to his apartment and return in that time. Besides, he testified, this provides no solution to the challenges he faces in walking to and from the Byron lot.
35The applicant stated that he did not understand why the respondent would not assign him an onsite parking space. He speculated that it might be because onsite spaces would provide prospective tenants with a greater incentive to lease from the respondent. He also thought that Gerald Pryal wanted to get him out of the building.
36In this regard he referred to an incident in March of 2011 when he asked to have the door on his refrigerator changed to open in the opposite direction. He stated that Gerald Pryal came to his apartment with a technician to do that job, and that Mr. Pryal expressed surprise and disgust at the state of his apartment. He testified that he had difficulty cleaning because of the restrictions on his mobility. The applicant stated that Mr. Pryal threatened to send him an ultimatum. Following this incident the applicant obtained the help of a cleaner who comes once a week to clean and do his laundry.
37The applicant stated that the refusal to consider his request made him feel sad and anxious, and led him to question his own actions. He feels that his requests generated hostility from Mr. Pryal and he has a fear of being evicted and excluded from the active community life of the building. He experiences frustration at seeing empty onsite parking spaces when he walks to his van in the Byron lot. The applicant maintains that the degenerative nature of his condition means that one day he will not live independently, but he wants to postpone that time for as long as possible. Being able to park onsite in any of the seven spaces would help him to live independently for longer.
38The applicant was cross-examined by Mr. Pryal. He testified that he had not provided the respondent with any medical information about his disability beyond the doctor’s letter which he appended to his letter of July 14. He confirmed that the respondent had only seen the more detailed medical reports when they were disclosed in preparation for this hearing.
39The applicant also confirmed on cross-examination that an observer would not necessarily know that his medical condition was deteriorating. He indicated that he has been using a cane since 2007, and had never talked to Mr. Pryal about his condition or the fact that it was worsening.
40On being asked whether he had approached the municipality to obtain a designated handicapped parking spot or other form of accommodation in the Byron lot, the applicant indicated that he had made no such inquiries.
41The applicant agreed with Mr. Pryal that there were no objective indicators to suggest that he was at risk of being evicted or marginalised within the building’s community. The applicant acknowledged that these were his perceptions and fears, and that he continues to attend social events in the building.
42In relation to the use of visitor parking spaces, the applicant stated that he had never seen vehicles being removed from those spots because they had violated the 15 minute limitation on their use. However, he testified that in the past few weeks Teresa Romano had put up signs in the building advising that the limitation would be strictly enforced.
Gerald Pryal’s evidence
43Mr. Pryal drafted the Response to this Application and adopted the narrative portion of the Response as his evidence, as well as providing additional testimony.
44He emphasised that Heritage Court is operated in a manner that accommodates people with disabilities. Mr. Pryal stressed that, as this is a seniors’ building, it was made accessible to people with disabilities long before the law required it. It is fitted to accommodate the mobility needs of residents who rely on motorised wheelchairs, walkers and canes.
45He testified that when the applicant moved into Heritage Court he accepted as a condition of his tenancy that he would not have onsite parking, and has lived with that condition for over ten years. Mr. Pryal also stressed that the applicant is in the same position as others in Heritage Court. There are tenants who also walk with canes and park their vehicles in the Byron lot. Many of the residents of Heritage Court suffer from disabilities that are worse than the applicant’s.
46Mr. Pryal explained the respondent’s policy regarding the allocation of onsite parking spaces. If an onsite space becomes available when a vacancy for an apartment is advertised and the prospective tenant wants onsite parking, then the space is allocated to that tenant and this is written into the terms of the lease.
47The respondent will only offer available onsite spaces to new tenants and not to existing tenants. Mr. Pryal gave two reasons for this. The first is that there is a commercial advantage in doing so. Although the charge for parking onsite is the same as for parking in the Byron lot, the offer of an onsite space is attractive to prospective tenants. If it can offer onsite parking, the respondent does not lose money by having apartments stand vacant when they come on the market. The second reason is that many existing tenants who park in the Byron lot want onsite parking. The respondent avoids friction and squabbling within the building by refusing to rent onsite parking to any of them. The practical result is that sometimes onsite spaces are rented to new tenants who have no disabilities.
48Mr. Pryal thinks that this approach is fair and reasonable. He stated that residents who have limitations on their mobility are allowed by the respondent to load and unload their vehicles by parking them for a short time at the front entrance or in the nearby visitor spaces.
49Mr. Pryal confirmed that he had received all three letters sent by the applicant requesting an onsite space, as well as the doctor’s letter appended to the last of the three. He did not deny that the applicant was disabled, but said that no changes in the applicant’s condition were visible or obvious from the time before the applicant requested onsite parking to the time after. He stated that the doctor’s letter did not have sufficient information to change his view at the time he received it. Mr. Pryal noted that he has seen the applicant walking about Kingston in the past, and that the applicant does not always rely on his vehicle. Last summer he saw the applicant walking some six blocks away from Heritage Court, on his way to a music festival.
50Mr. Pryal testified that had he received more detailed medical reports, he might have dealt with the applicant’s report differently. However, once the decision was made it could not be revisited. To do so would cause tension among the residents of the building who also want onsite parking.
51He denied that the respondent had any intention of evicting the applicant. Referring to the incident when he entered the applicant’s apartment, he confirmed that he was concerned at the state of the apartment and had accused the applicant of being a hoarder. He believed that when he told the applicant how shocked he was, this prompted the applicant to address this problem by hiring someone to clean for him, and in his view the issue was now resolved.
52Of the seven onsite spaces, Mr. Pryal believed two were currently vacant if they had not yet been assigned by the property manager. He also stated that two onsite spaces had been allocated to new tenants in the period since the applicant first requested one.
53On cross-examination, Mr. Pryal testified that the applicant’s letters did not justify him being given an onsite space. He did not request further information from the applicant because he thought it was up to the applicant to bring sufficient medical information to his attention. Mr. Pryal testified that, as landlord, he regularly receives requests from tenants who are “trying it on”, or seeking to obtain benefits in their living arrangements that other tenants might not obtain. He did not necessarily think that the applicant was “trying it on” with his request, but that this is why he expected the applicant to come forward with persuasive evidence of his need for an onsite space.
54When the applicant failed to do this, Mr. Pryal relied on his own observation to conclude that there was no need to give the applicant an onsite space. After the second letter he told Teresa Romano to tell the applicant that he would not receive an onsite space.
55Mr. Pryal agreed that the distances to spaces in the Byron lot were greater than to the onsite spaces, but maintained that they are not significant differences. When pressed, he conceded that the differences in distance might matter in the winter.
56Mr. Pryal indicated that he never asked the applicant why he wanted onsite parking. He agreed that he knew the applicant walked with a limp, relied on a cane and needed to employ a cleaner for his apartment. He stated that he did not think he was better placed than the applicant to decide what was physically challenging for the applicant, but that as landlord he had the obligation to balance the applicant’s interests against those of the other tenants.
57Mr. Pryal was questioned as to his understanding of what the law required of him as a landlord. He used to be a practicing lawyer, but had long since retired from practice. He understood the Application to be a legal proceeding and thought he had informed himself as to his obligations by doing online research on the website of the Ontario Human Rights Commission. He believed that because Heritage Court complies with Building Code standards of accessibility for disabled persons, the respondent had met all of its legal obligations.
58At the conclusion of the hearing the respondent undertook that, even if the vacant onsite spaces had already been allocated to new tenants, it would ensure that an onsite space would be provided to the applicant if the Tribunal made such an order.
analysis
59The Code prohibits discrimination in the provision of housing on the basis of disability. Sections 2(1) and 9 read:
2(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
60The Code also provides that there is no discrimination on the basis of disability if it would cause undue hardship to accommodate the disability. Sections 17(1) and (2) read:
17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
17(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person 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.
61The respondent’s duty to accommodate up to the point of undue hardship consists of two elements, one is procedural and the other is substantive (See, British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868). The procedural element requires an individualized investigation of accommodation measures and an assessment of the applicant’s needs. The substantive element requires a consideration of the accommodation offered or a respondent’s reasons for not providing accommodation.
62The issues I need to determine in this Application are whether the applicant was disabled and, if so, whether he requested accommodation of his disability. If he made that request, I must then decide whether the respondent could have accommodated that request without undue hardship. If I find that it could have, then I must decide what remedy the applicant is entitled to.
63I should note that I found both the applicant and Mr. Pryal to be credible and straightforward in their testimony, and there was no conflict between their evidence on any material point. One issue which was contested was Mr. Pryal’s claim that had he been provided with more detailed medical evidence from the applicant, then he might not have refused the applicant’s request. I do not need to make a credibility finding on this point, as that dispute focuses on how the respondent would have addressed a hypothetical situation, not what actually occurred.
Was the applicant disabled?
64“Disability” is defined in s. 10 of the Code in its relevant part as:
. . . 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 . . .
65The applicant provided uncontradicted evidence that he suffers from arthritis in the spine, hips, knees and hands. This is corroborated by a number of medical reports, also unchallenged, that confirm he has had arthritis for a number of years and that his condition is deteriorating. The impact of his disability is that he has difficulty and pain in walking, in gripping and holding objects. He is unable to perform some of the activities of daily living, such as cleaning his apartment or doing laundry. Again, the impacts of the condition on his mobility (including walking to the Byron lot) and his ability to perform basic activities are confirmed by the applicant’s doctors. Given the uncontested evidence regarding his physical condition and its impacts upon him, I find that he suffers from a disability as it is defined in the Code.
Did he request accommodation?
66The applicant made three written requests for an onsite parking space. All three letters give his disability as the reason underlying his request. The third of these is supported by a letter from his family physician. The respondent confirmed having received these letters.
67However, as I understand the respondent’s argument, it maintains that the duty to accommodate was not triggered by these letters because they did not contain enough medical information about the applicant’s disability for the respondent to make a decision about whether to change its practice of not offering onsite spaces to existing tenants. This appears to amount to an argument that the respondent did not have a duty to make any inquiries of the applicant or initiate any investigation. Rather, the applicant had to put a fully formed case to the respondent and the respondent would then make a decision.
68This is not what the law requires. Once the applicant raises the issue of disability and requests accommodation, the respondent is obliged to inquire into the nature of the disability. This entails active engagement on the part of the respondent, it is not simply the passive recipient of information (See, Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 at para. 144, as well as the comments of the Divisional Court on judicial review: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), at para. 106).
69The language of all three of the applicant’s letters put the respondent on notice in plain terms that he was seeking accommodation because of his disability. By his own evidence, Mr. Pryal already knew that the applicant had some degree of disability before he received any of the letters because he had observed him walking with a limp and using a cane. Receipt of the letters should have caused the respondent to either accept what the applicant was saying or, if it had doubts, to inquire further.
70Mr. Pryal appears to have assumed that the applicant’s mobility was not as limited as he claims it to be. That is why he mentioned having seen the applicant walking some distance to a music festival last year. If the respondent really had doubts about the applicant’s physical limitations, then the apparent conflict between what the letters said and what Mr. Pryal believed to be the applicant’s condition was, if anything, even greater reason for the respondent to investigate the discrepancy that it perceived.
71Further inquiries could have examined the impact on the applicant of having to walk the extra distance to the Byron lot and the possibilities of addressing that impact. The respondent’s failure to make any inquiry was a breach of the procedural component of the duty to accommodate.
Could the applicant have been accommodated without undue hardship?
72Section 17(2) of the Code places the onus on the respondent to show that accommodation would cause undue hardship. In Central Okanagan School District v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at para. 984, the Supreme Court of Canada considered how far a respondent must go in doing so, and noted that:
More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term “undue” infers that some hardship is acceptable; it is only “undue” hardship that satisfies this test.
73Here the respondent took no steps at all to accommodate the applicant. Mr. Pryal indicated that the respondent’s policy of refusing all requests from existing tenants for onsite parking is reasonable. He was frank in stating that the policy provides the respondent with a commercial advantage in attracting new tenants when the availability of an onsite space coincides with an apartment coming vacant for rent. It also provides what he described as the benefit of avoiding friction with and between existing tenants, many of whom would like one of the onsite spaces that are in such short supply. Mr. Pryal believes that treatment of the applicant was not discriminatory because there are other tenants who park in the Byron lot who are similarly disabled.
74I find that the respondent made a conscious decision to refuse the applicant’s request for business reasons, both to attract new tenants and to avoid conflicts with and between tenants. In doing so, it failed to accommodate the applicant’s disability.
75There is no evidence that assigning the applicant an onsite space would have caused the respondent much hardship, let alone undue hardship. In fact, in the circumstances of this case, there are four reasons for thinking that the applicant’s request could have been accommodated:
First, there were vacant onsite spaces at the time of the applicant’s requests;
Second, the cost of onsite parking is the same as the cost of parking in the Byron lot, so the monetary value of the spaces is equivalent;
Third, the respondent indicated that it has a waiting list of tenants seeking to rent. In light of this fact, I think it is reasonable to infer that the respondent does not run the risk of losing an opportunity to rent if it has one less onsite parking space to offer when its next apartment comes vacant; and
Fourth, while there is clearly greater demand for onsite parking than there is a supply, the respondent could have managed potential tensions around this issue by putting in place a fair and transparent process for allocating onsite spaces that also took into account the Code-related needs of existing and future tenants. It could then have dealt with the applicant’s request accordingly.
76For these reasons I conclude that the respondent could have accommodated the applicant without undue hardship. Because it failed to do so it breached the substantive component of the duty to accommodate.
What is the appropriate remedy?
77Subsections 45.2(1) and (2) of the Code provide that:
… the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
Non-Monetary Restitution
78It is well established that the Code has a remedial purpose, and that this can include placing a party whose rights have been infringed in the position they would have been had the discrimination not taken place (See, T.A. v. 60 Montclair, 2009 HRTO 369 at para. 20). Here the applicant seeks an order directing the respondent to rent him an onsite parking space. I find that this is the most effective way to put the applicant in the position he would have been, but for the respondent’s refusal of his request. The applicant enjoys living at Heritage Court and wants to stay there. The daily requirement to walk back and forth to the Byron lot causes him real pain that could be mitigated by having to walk shorter distances. I find in the circumstances of this case that the respondent can accommodate this without undue hardship.
79Accordingly, the respondent is ordered to rent one of the vacant onsite parking spaces to the applicant at the same rent it charges other tenants who have onsite parking. It is open to the respondent to determine which space to rent to the applicant, having regard to the size of the applicant’s vehicle.
Compensation for injury to dignity, feelings and self-respect
80In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraphs 53-54 that:
… injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
…Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
81In this case the respondent failed to respect both the procedural and substantive components of its duty to accommodate. It was dismissive of the applicant’s request, despite repeatedly being given reason – through the applicant’s letters - to question its practice of refusing to rent onsite spaces to existing tenants under any circumstances. Its dismissive approach appears to me to have been based in part on a wrong understanding of the law, and in part on its assumption that it could not possibly accommodate all the requests it might get for onsite parking. In other respects the way the respondent manages the building appears to reflect care about the welfare of its tenants. It provides services, such as organising social activities (which the applicant benefits from) and onsite visits from physiotherapists that it is not obliged to provide as a landlord.
82The applicant has requested $10,000 as compensation and referred me to cases where a respondent landlord has refused to rent to a disabled tenant or allow a disabled tenant to transfer within a building. In Devoe v. Haran, 2012 HRTO 1507, the Tribunal awarded $4,000 in monetary compensation. Devoe makes note of the awards in Taranco v. Michedes, 2010 HRTO 128 ($5,000) and Dixon v. 930187 Ontario Ltd., 2010 HRTO 256 ($10,000).
83However, this Application is not about a landlord’s refusal to rent to a disabled tenant. Rather, it is about a refusal to make changes which would facilitate physical access for an existing tenant. It has some clear parallels with another case cited by the applicant: Jakobek v. Toronto Standard Condominium Corporation No. 1626, 2011 HRTO 1901. In that case a disabled applicant was not allowed to park his motorised scooter in one of the parking spots he owned in a condominium. The Tribunal awarded $5,000 in compensation.
84The applicant also cited DiSalvo v. Halton Condominium Corporation No. 186, 2009 HRTO 2120. In that case the respondent refused to pay for the cost of installing a ramp to enable a disabled applicant to enter and exit his front door. In finding that the respondent breached the duty to accommodate, with the result that for 8 months the applicant could not enter and exit his own home unaided, the Tribunal awarded him $12,000. The impact on the applicant in this case is not as severe. While he suffers pain in walking to the Byron lot, this does not restrict his freedom to enter and leave his own home in the manner suffered by the applicant in DiSalvo.
85I accept the applicant’s evidence that in addition to the physical pain caused by having to walk the distance to the Byron lot, the refusal to consider his request left him feeling marginalised and of lesser worth. I find that in the circumstances an appropriate award for injury to dignity, feelings, and self-respect is $5,000.
Compliance Remedies
86It was evident in the course of the hearing that the respondent does not understand what the Code requires of it as a landlord. As Mr. Pryal is the respondent’s officer who takes decisions regarding the operations of Heritage Court, the respondent is ordered to ensure that he completes the Ontario Human Rights Commission’s online training module entitled Human Rights 101, and provide confirmation of his completion of the module to the applicant in writing. The module can be found online at www.ohrc.on.ca/en.
87The respondent is also directed to retain the services of a human rights consultant to develop a human rights policy and complaint mechanism. If, for example, the respondent faces numerous requests for onsite parking on Code-related grounds, a properly drafted policy will enable it to manage these requests in a way that is fair yet does not impose undue hardship on it.
order
88The Application is granted and I make the following Orders:
(i) The style of cause is amended to identify the respondent as Heritage Court Kingston Ltd.;
(ii) The respondent is to rent an onsite parking space to the applicant at the same cost that it charges other tenants for onsite parking within seven days of the date of this Decision;
(iii) The respondent is to pay the applicant $5,000 as compensation for injury to dignity, feelings, and self-respect, plus prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, at a rate of 1.3% from June 8, 2011, the date the applicant’s request was refused, to the date of this Decision. The respondent is to pay this within 30 days of the date of this Decision. If it fails to do so, then post-judgment interest at the rate of 3% shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date;
(iv) The respondent is to ensure that Gerald Pryal has completed the Ontario Human Rights Commission’s online training module entitled Human Rights 101, and provide confirmation of his completion of the module to the applicant in writing within 90 days of the date of this Decision; and
(v) The respondent is to retain the services of a human rights consultant to develop a human rights policy and complaint mechanism, and provide confirmation of this to the applicant in writing within 90 days of the date of this Decision.
Dated at Toronto, this 14th day of May, 2013.
“Signed by”
Paul Aterman
Vice-chair