Larry Helm v. Deer Ridge Golf Club, 2014 HRTO 1722

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Larry Helm

Applicant

-and-

Deer Ridge Golf Club

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 28, 2014

Citation: 2014 HRTO 1722

Indexed as: Helm v. Deer Ridge Golf Club

APPEARANCES

Larry Helm, Applicant

Self-represented

Deer Ridge Golf Club, Respondent

Melanie Reist, Counsel

1This is an Application filed on September 16, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services or facilities because of disability.

2The applicant is a member of the respondent golf club, which is a private golf club in the Kitchener area. In his Application, the applicant states that the respondent increased the fee for renting power carts, typically two-seat motorized vehicles with storage for golf clubs that golfers ride, rather than walk, as they progress through the course. The applicant states that he has requested over the two or three years preceding the Application that the respondent provide a discount to disabled or elderly players who must use power carts because they can no longer walk the entire course. The applicant also states that he has asked the respondent to allow him to use his own single-rider power cart rather than renting a power cart from the respondent. The remedies the applicant requested in the Application included offering a discount on golf cart rentals for members who must use them to play and/or to allow members to use single-rider carts. In materials filed prior to the hearing, the applicant requested the following additional remedies: to equalize the cost per member by providing power carts to individuals with disabilities at no charge and to reimburse members with disabilities for cart fees paid in 2011, 2012, 2013 and 2014.

3In its Response, the respondent stated that there is nothing discriminatory about charging all players who rent power carts the same fee. The respondent states that it accommodates older members and/or members with mobility issues by allowing them to drive their power carts to places on the golf course that are usually off-limits for power carts. The respondents state that the applicant’s request for discounted cart rental fees or to use a single-rider power cart is not a human rights issue, but an attempt by the applicant to reduce his annual golfing costs.

The Hearing

4The hearing of this matter took place on July 21, 2014. The applicant testified and tendered three documents into evidence. Alan Palenczy testified for the respondent and the respondent tendered a book of documents containing 25 tabs and two other documents. Mr. Palenczy was a member of the respondent’s Board of Directors (the “Board”) between 2007 and 2013, and in the last two years on the Board held the positions of Vice President and President, respectively.

5The facts of this case are not in dispute. The respondent is a private golf course in the Kitchener area. Mr. Palenczy’s evidence was that the respondent considers itself to be a “high end” club, noting that it has been ranked in the top 100 courses in Canada (coming in at 75^th place). The respondent is an equity membership club, which means that members must purchase an equity membership certificate or share when they join the club. The respondent has approximately 400 members. The respondent and his wife joined the respondent in 2004 or 2005 and the applicant paid $50,000 for each of their shares. The evidence was that the annual costs for each member to play in 2014 were annual dues of $4,050 plus HST, a capital levy of $600 plus HST and a mandatory guest fee of $720 (which could be defrayed by bringing guests to the course who pay $120 for a round, or game, of golf). The applicant paid for both his and his wife’s costs. Players may rent power carts and the rental cost has increased over the past several years. The evidence was that in 2009 the fee was $14 plus HST, rising to $17 plus HST in 2011 and to $19 in 2013. Prior to 2009, the respondent offered discounted power cart rental fees for members with mobility issues (whether temporary or permanent).

6When the applicant joined the respondent he had no mobility issues and preferred to walk. Unfortunately, he broke his right ankle badly in 2006, requiring three pins to be inserted to repair the damage. The applicant’s evidence was that his injury led to osteoarthritis in his right ankle and he tendered x-rays of his ankle and his doctor’s commentary on the x-rays, which confirm this diagnosis. The applicant stated that his doctor advised him not to walk when playing golf, but to ride a power cart. The applicant stated that he twice tried to walk while golfing since his injury, but on both occasions could not complete his game and had to be driven off of the course. At the outset of the hearing the respondent conceded that the condition of the applicant’s ankle is a disability as it is defined in section 10 of the Code.

7The applicant continues to play golf and he estimates that he plays 100 rounds of golf at the respondent golf club in the six-month season running from April to the end of September. The applicant and his wife also play golf in the fall and winter months at a golf course in Arizona, in the United States of America, where they each have golf memberships. The applicant confirmed that their memberships in Arizona run between November 1 to the end of April, at a cost of approximately $740 per month. The applicant, however, must use a power cart and therefore incurs an additional rental charge for each round of golf he plays.

8The applicant testified that he can afford the cost of the rentals, but felt that, starting in 2011, power cart fees were getting “out of line”. In his view, the cost per round of golf became excessive as compared to non-disabled players who do not use power carts. The applicant tendered calculations for the years 2009, 2011 and 2013 to show the difference in costs incurred by members who must use a power cart and those that walk, assuming that a member plays 80 rounds of golf in a season. In 2009, the power cart fee was $14 per round plus HST or $14.82; therefore, a member using a cart for each round would pay an additional $1,265.60 per season. In 2011, the power cart fee was $17 per round plus HST or $19.21; therefore, a member using a cart for each round would pay an additional $1,536.80 per season. In 2013, the power cart fee was $19 per round plus HST or $21.47; therefore, a member using a cart for each round would pay an additional $1,717.60 per season. The applicant estimated that there are 20 disabled members that always use golf carts, which, based on the applicant’s assumptions, equals $34,352.00 in total additional cost for disabled members. The applicant stated that if this cost was born by all 400 members, the resulting extra cost for each member would be $85.88 per year.

9As noted above, the respondent offered a discounted power cart rental fee to members with mobility issues prior to 2009. Mr. Palenczy’s evidence was that the discount had been $2 per rental. Mr. Palenczy also testified that members became eligible for the discount if they provided medical confirmation that they required a power cart to be able to play. The program was discontinued because of abuse; for example, some members claimed the discount when they used carts, but at other times would walk without difficulty while playing. The applicant requested that the respondent consider offering a discounted power cart fee for members with disabilities in October 2010. The respondent denied that request in a letter, dated February 7, 2011, from the respondent’s General Manager. The reasons for denying the request were abuse of the discount in the past and lost revenue that would have to be recouped through increased fees. The documents tendered by the respondent indicate that the applicant again raised the issue of discounted cart fees for members with disabilities in February 2012. E-mail messages between members of the Board discussing the applicant’s request indicate that some of the Board members were not in favour of discounting power cart rental fees and that they had little sympathy for the applicant, as they felt the applicant could curtail his expenses by simply golfing less. The president of the Board at the time sent an e-mail message to the applicant on February 28, 2012, again declining to introduce a discounted power cart fee for members with disabilities. The applicant asked the Board to reconsider its decision is a reply e-mail message on February 28, 2012, and he continued to raise the issue in his e-mail correspondence with the respondent on several occasions in 2013, up to the point when he filed this Application. The respondent did not agree to discount power cart rental fees for members with disabilities. In cross-examination, the applicant acknowledged that he can fully enjoy playing golf, but would like some assistance to make the experience more affordable.

10The applicant offered an alternative solution to his concern regarding power cart fees, which was for the respondent to allow him to use his own single-rider power cart. The applicant would purchase the cart for himself and therefore have no need to rent a cart from the respondent. The documents before me indicate that the applicant first asked the respondent to allow him to use a single-rider cart in or about October 2011 and that he proposed paying a “trail fee” of $700 per year to do so. There is no dispute that the respondent did not permit the applicant to use a single-rider cart. The applicant’s evidence was that the respondent does allow members who walk while golfing to use “power caddies”. A power caddy is similar in appearance to a standard golf cart, i.e., a stand with wheels for a golf club bag. Unlike a standard golf cart, which the player pulls or pushes by a handle, a golf caddy has a small electric motor and the player drives it by remote control as he or she walks during the game. It is common ground that the respondent does not charge players to use power caddies.

11Mr. Palenczy explained the respondent’s concerns regarding single-rider power carts. According to Mr. Palenczy, the Board’s main concern was safety. The respondent maintains the power carts it rents to players and is therefore confident that they are maintained properly and operating correctly. Accordingly, the Board was concerned with ensuring that power carts owned by members would be safe to operate. Mr. Palenczy noted that the respondent’s power carts have governors on them that restrict how fact they can go, but it was unknown whether single-rider carts were equipped with governors. Mr. Palenczy’s evidence was that two other members who own their own power cart were not allowed to use them on the respondent’s course. Mr. Palenczy stated that a power caddy is basically a battery-powered pull cart that travels at walking speed that does not pose the same safety concerns as a riding cart. He also noted that using power caddies has no effect on revenue, since players using them are walking and therefore not using power carts.

12It was common ground that the respondent does provide accommodation to members with restricted mobility in terms of how they may use power carts. Mr. Palenczy explained that members with mobility restrictions, such as the applicant, can request to use power carts marked with a blue flag. Regular carts are required to stay on the fairways and only exit the fairways at designated points. Regular carts are sometimes not allowed at all, e.g., after heavy rainfalls when the turf is soft and vulnerable to damage. A player using a regular cart whose golf ball lands in a place where a regular cart is not allowed must park the cart and walk to his or her ball. Players operating carts marked with a blue flag may drive anywhere on the course, which the exception of fescue grasses, tee-off boxes, putting greens and sand bunkers. “Blue flag” players may use power carts when regular carts are not allowed because of wet conditions. In this way, players with mobility restrictions can, for the most part, drive directly to their golf balls, which limits the need to walk. Mr. Palenczy’s evidence was that between 10 and 15 members use the blue flag program. He noted however, that 46% of golf rounds played by members involve the use of a power cart. The applicant acknowledged that he used the blue flag system and that it provides much greater access around the golf course than is afforded to player using carts without a blue flag.

Submissions

13The applicant submitted that the issue in this case is financial because the fees charged by the respondent to rent power carts have a disproportionate effect on members with disabilities. In his view, members with disabilities are required to contribute more to the respondent club because they have no choice but to use power carts. The applicant also submitted that any issues with respect to the use of single-rider power carts could be overcome and submitted that if the respondent’s personnel investigated the matter they would learn that they do no harm to the course and are no faster than conventional carts. The applicant submitted that it was discriminatory for the respondent to allow members to use power caddies, but not single-rider power carts.

14Counsel for the respondent began her submissions by noting that the Code is quasi-constitutional legislation with the fundamental purpose of elimination of exclusions in key social areas based on irrelevant stereotypes. The respondent noted that this case is the applicant’s ability to play at a private golf course. The respondent submitted, however, that this case was not about removing barriers. The respondent submitted that, rather, the case was about a wealthy individual trying to get a discount on his power cart fees. Counsel noted that the cart fees did not affect the applicant’s ability to participate in society and there was no evidence that the fees posed any kind of barrier for the applicant.

15The respondent submitted that human rights jurisprudence establishes that an applicant must establish that he or she suffered a substantive or real disadvantage in order to prove a violation of the Code. In that respect, the respondent submitted that not all negative outcomes trigger the protection of the Code. The respondent submitted that requiring the applicant to pay a fee to rent power carts when he golfs does not amount to a substantive disadvantage. The respondent submitted that the applicant’s pursuit of a discount on his golfing expenses through a human rights application trivializes the purposes of the Code.

16The respondent submitted that, in any event, it did accommodate the applicant’s disability-related needs by renting power carts and through the “blue flag” system that allows players with disabilities wider latitude to drive their carts to their balls in any weather condition. The respondent submitted that there was no evidence that these accommodations were insufficient to allow the applicant to play golf, since he played more than 100 rounds of golf at the respondent course in 2012 and 2013. The respondent argued that the fact that the applicant needs to use a power cart because of his disability does not mean that he should be allowed to use power carts for free. The respondent submitted that golf is a sport with certain costs and that providing power carts is a service provided by the respondent for which members must pay. By way of analogy, the respondent submitted that many locations provide parking that is closer to entrances and more accessible to people with disabilities, but noted that those using such accessible parking still have to pay for it. The respondent submitted that the applicant’s position that making him pay to use power carts is discriminatory does not bear scrutiny.

17In reply, the applicant submitted that this Application is not only about him, but could affect all golf courses in Ontario. The applicant stated that it was not the case that he wants a service for free, but submitted that in other contexts individuals do not have to pay more for access. The applicant submitted that to be treated fairly he should not have to pay a “surcharge” for accessibility.

Analysis and Decision

18The relevant sections of the Code are as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, 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 or disability

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

19The applicant alleged that the respondent failed in its duty to accommodate his disability. The duty to accommodate, however, is not a stand-alone obligation under the Code and arises only under sections 11, 17 or 24 of the Code where a person is disadvantaged by a requirement or qualification because of a prohibited ground of discrimination. See Baber v. York Region District School Board, 2011 HRTO 213. The Supreme Court of Canada noted in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meoirin”), that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. Accordingly, the duty to accommodate arises only where an applicant has been subject to discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship. In this case, the applicant alleges that the neutral requirement to pay for power carts has an adverse effect on individuals with disabilities, such as him. Accordingly, section 11 of the Code, which deals with constructive or “adverse effect” discrimination is pertinent to this case.

20To prove discrimination, the applicant must establish that the respondent’s actions caused him to suffer a substantive disadvantage. The Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, defined discrimination at pages 174-75 as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

21To amount to a violation of the Code an applicant must establish substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J. stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

22In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Ontario Court of Appeal also stated at paragraph 104 that the Tribunal must determine, among other things, whether the treatment in issue “truly creates a disadvantage.”

23All players at the respondent club who use a power cart must pay to so; therefore, it is obvious that players, like the applicant, who always use a cart while golfing will incur higher expenses than those who do not. In my view, such higher expenses amount to a disadvantage. The applicant uses a power cart because his disability prevents him from walking; therefore, the disadvantage for the applicant is linked to a prohibited ground of discrimination. The jurisprudence is clear, however, that not all distinctions or disadvantages are discriminatory. In my view, the requirement for players at the respondent golf club to pay to use power carts does not amount to a substantive disadvantage for individuals, like the applicant, who must use carts because of a disability. There was no evidence that this requirement poses a barrier to players with disabilities. The only evidence before me was with respect to the applicant’s experience and he admitted that paying for power cart rentals did not prevent him from golfing, and indeed he plays quite regularly. The applicant acknowledged that the “blue flag” rules the respondent applies players with disabilities provides greater access to the course than players without disabilities enjoy when riding carts. The applicant agreed that he is fully able to enjoy golfing at the respondent club. Accordingly, the requirement to pay to use a power cart has not caused him to be excluded or restricted in playing golf. In these circumstances, I cannot find that the applicant has suffered a substantive disadvantage, and, accordingly, I find the respondent’s impugned conduct does not amount to a prima facie discrimination. As a result, it is unnecessary to consider whether the respondent accommodated the applicant to the point of undue hardship.

24The Application is dismissed.