Anderson v. Stone Willow Inn, 2013 HRTO 979

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shannon Anderson by her litigation guardian Sharon Anderson Applicant

-and-

Stone Willow Inn Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: June 3, 2013 Citation: 2013 HRTO 979 Indexed as: Anderson v. Stone Willow Inn

APPEARANCES

Shannon Anderson by her litigation guardian Sharon Anderson, Applicant Sharon Anderson, Representative

Stone Willow Inn, Respondent Matthew Orchard, Counsel

INTRODUCTION

1The applicant filed an Application on behalf of her daughter, who is autistic, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent, which is a hotel, discriminated against her daughter with respect to services because of her disability. The respondent filed a Response, which denied the allegation of discrimination.

2The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application because it has no reasonable prospect of success. The following are my reasons for the dismissal.

BACKGROUND

3The facts in this case are largely not in dispute. Where there is a dispute between the parties, I have pointed this out below by using verbs such as “alleged” or “denied”. I have not included all the details of the respondent’s allegations because for the purpose of this summary hearing, I have set out the applicant’s case at its highest (see para. 23, below).

4Shannon Anderson is autistic. She lives in Mississauga with her parents, Sharon and John Anderson. At the time of the incidents at issue in this case, she was 19 years old. She also has a sister, Kristina, who was 21 years old at the time. The respondent, the Stone Willow Inn (the “Inn”), is a hotel in St. Marys, which is owned by David Forster.

5In November 2011, Shannon began having medication issues and was hospitalized for three days. At the time of the incidents at issue in this case, her behaviour was unpredictable because she was still adjusting to a change in her medication.

6On January 31, 2012, John’s father, who lived in St. Marys, passed away. The funeral was scheduled to take place on February 4, 2012. On February 1, 2012, John and Sharon booked a room for two adults and two “kids” at the Inn with an arrival date of February 3, 2012 and a departure date of February 5, 2012. On February 3, 2012, John and Sharon checked in and confirmed in the Guest Registration form that two adults and two “children” would be staying in the room. They also informed a staff person that Shannon had autism.

7After the check-in, several separate incidents involving Shannon occurred at the Inn. The first incident occurred in the lobby. The respondent alleged that Shannon began to yell and scream. Sharon acknowledged that Shannon had a “minor meltdown”.

8The second incident occurred when Shannon wandered off alone into a restricted area of the Inn, and then walked out a back door. Sharon found her and brought her back inside. The respondent alleged that Sharon physically and verbally abused Shannon when she was bringing her back upstairs to their room. Sharon denied that she abused Shannon in any way. She alleged that she was merely trying to re-direct Shannon from an unsafe area to a safe area in accordance with training that she had received on dealing with a person with autism.

9The third incident also occurred in the lobby. The respondent alleged that Shannon called 911 on a pay phone and the police came. Sharon did not specifically address this allegation, but she alleged that Shannon does not know how to use a phone. The respondent also alleged that when Shannon started walking towards the washrooms, Sharon directed an extremely abusive comment towards her. Sharon denied that she verbally abused Shannon. Again, she alleged that she was merely trying to re-direct Shannon.

10On February 4, 2012, Sharon, John and Kristina left the Inn in the late morning or early afternoon to attend the funeral. They left Shannon in the hotel room by herself. They did not bring Shannon to the funeral because her behaviour had been unpredictable, and John’s mother had expressed a desire that the funeral not be disrupted. Neither Sharon nor John informed the Inn’s staff that they had left Shannon alone in the Inn.

11At approximately 12:30 p.m., the Inn’s staff heard Shannon running and screaming upstairs. Shannon then came downstairs and the staff discovered that she had locked herself out of the room. The staff gave her a new room key and showed her how to use it. The respondent stated that Shannon then made several calls to the front desk and other rooms from the phone in her room. Sharon denied that this was possible; she alleged that Shannon does not know how to use a phone.

12Mr. Forster called the police and the Children’s Aid Society (the “CAS”). The respondent alleged that he made these calls because he was concerned that Shannon, who was a minor, according to the Inn’s booking and check-in records, and was also autistic, had been left alone in the hotel. The police came to the Inn and spoke with both Shannon and the CAS, and determined that it was not necessary to intervene.

13At approximately 2:30 p.m., Sharon, John and Kristina returned to the hotel. Mr. Forster told them what had happened, and warned them that if there were any further issues disturbing other guests that they may be evicted from the Inn. Sharon and John were upset and decided to check out early from the Inn. During the check-out, Mr. Forster accused Sharon of abusing Shannon, and Sharon and John told Mr. Forster that they would be contacting the authorities or the Human Rights Commission about his behaviour.

14Sharon and John subsequently contacted St. Marys’ mayor and Community Living St. Marys to intervene in this matter. Sharon alleged that Mr. Forster failed to respond to the overtures of the mayor and Community Living.

15On June 1, 2012, Sharon filed her Application with this Tribunal on behalf of Shannon. She alleged that the respondent discriminated against Shannon because of her disability by failing to accommodate her disability and threatening to evict her and her family from the Inn. As a remedy, she requested, among other things, monetary compensation for “mental suffering and inconvenience”, and a written apology from Mr. Forster in which “he takes full responsibility for his actions and admits that what he did was wrong.”

16On August 7, 2012, the respondent filed a Response, which denied the allegation of discrimination, and stated that its actions had been appropriate in the circumstances. The respondent attached a copy of its 11-page Customer Service Policy Statement: Providing Goods and Services to People with Disabilities to its Response.

17On August 20, 2012, the applicant filed a Reply.

18On September 6, 2012, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success.

19The summary hearing took place on January 11, 2013. Following the summary hearing, the respondent filed a Guest Registration form and the applicant filed an Occurrence Summary and a General Occurrence Report from the Ontario Provincial Police with the Tribunal.

ANALYSIS

20Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

21The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

22The Application relates to ss. 1, 9 and 17 of the Code, which provide:

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

(...)

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

(...)

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.

(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.

23The focus of the summary hearing was on the first branch of the Dabic test, namely, whether assuming all the allegations in the Application are true, it has a reasonable prospect of success. As such, in addition to the undisputed facts set out above, I will assume that it is true that Sharon never physically or verbally abused Shannon at the Inn, and that Shannon does not know how to use a phone, which means that she did call not 911 on a pay phone in the Inn or make calls to the front desk and other rooms from the phone in her room.

24In her submissions, Sharon stated that the Application has a reasonable prospect of success because Mr. Forster was unwilling to accommodate Shannon’s disability, and instead “sicced” the police on her and threatened to evict her from the Inn. She stated that she believes that Mr. Forster did not want a person with a disability staying in his Inn.

25In its submissions, the respondent stated that the Application does not have a reasonable prospect of success because Mr. Forster called the police and the CAS based on an honest belief that there was a child protection issue, and his warning about eviction was simply a caution. The respondent stated that the Andersons were never evicted from the Inn. The respondent also stated that its Customer Service Policy Statement: Providing Goods and Services to People with Disabilities was in effect at that time.

26In my view, the Application does not have a reasonable prospect of success. The following are the salient facts:

• Although Shannon was a young adult, Sharon and John informed the Inn’s staff during the booking and check-in process that she was a minor.
• During the check-in process, they also informed the staff that Shannon had autism.
• At that time, Shannon was adjusting to a change in her medication that made her behaviour unpredictable.
• After the Andersons checked in, there were several incidents involving Shannon in common and restricted areas of the Inn, including a meltdown and wandering off.
• Sharon and John decided not to bring Shannon to the funeral because of concerns that she would be disruptive.
• Shannon was unable to use a phone if there was an emergency.
• Despite the above facts, Sharon and John left her alone in the room in the Inn for more than two hours without notifying the Inn’s staff.
• The staff discovered that Shannon had been left alone in the Inn after they heard her running and screaming because she had locked herself out of the room.

27In my view, the only reasonable inference that can be drawn from these facts is that it was Sharon and John’s identification of Shannon as a minor with autism, the nature of Shannon’s disability-related behaviour during her stay at the Inn (particularly, wandering off), and, most importantly, Sharon and John’s failure to notify the Inn’s staff that they were leaving Shannon alone in the Inn, rather than the respondent’s unwillingness to accommodate Shannon’s disability-related needs or have a guest with a disability, that caused Mr. Forster to call the police and the CAS and issue an eviction warning to Sharon and John.

28I appreciate that Sharon and John were under a great deal of stress at that time. At the same time that Shannon was exhibiting behaviour issues related to a change in her medication, they had to deal with the death of John’s father. These circumstances probably explain why they either forgot to notify the Inn’s staff, or did want the additional hassle of notifying the staff, that they would be leaving Shannon alone in the Inn while they attended the funeral.

29At the same time, however, I fully understand why Mr. Forster was angry at Sharon and John at that time, and has subsequently refused to apologize to them. He was aware that Shannon had autism, but also had an honest belief that she was a minor, and given the behaviour that she had exhibited the previous day (particularly, wandering off), he must have been astounded and deeply concerned that Sharon and John had left her alone in the Inn without notifying the Inn’s staff. Furthermore, since then, Sharon and John have been on a campaign to force him to take responsibility and apologize for a situation that was largely of their own doing.

ORDER

30The Application is dismissed.