Saxon v. 1762668 Ontario Inc., 2014 HRTO 232

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Saxon Applicant

-and-

1762668 Ontario Inc. and Anna Maria Fiorito Physiotherapy Professional Corporation Respondents

DECISION

Adjudicator: Mary Truemner Date: February 20, 2014 Citation: 2014 HRTO 232 Indexed as: Saxon v. 1762668 Ontario Inc.

APPEARANCES

Linda Saxon, Applicant Self-represented

1762668 Ontario Inc. and Rennie Rota, Respondents Matthew Todd, Counsel

Anna Maria Fiorito Physiotherapy Professional Corporation, Respondent Anna Maria Fiorito, Representative

Introduction

1This is an Application filed on December 29, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination because of disability with respect to the area of goods, services and facilities. The applicant alleges that the respondents refused to install an automatic door to the clinic which she visited very regularly for many years to receive massage and physiotherapy.

2Mr. Rota owns 1762668 Ontario Inc. (“the landlord”) with his wife. He requested that he be removed as a personal respondent, noting that the landlord, which is the owner of the property in which the clinic operates, agrees to take responsibility for any of Mr. Rota's actions or inactions. The applicant and Anna Maria Fiorito Physiotherapy Professional Corporation, "the clinic", consented that he be removed. In the circumstances, Mr. Rota is removed and the style of cause has been amended accordingly.

evidence

3Most of the evidence adduced by the parties is undisputed.

4The applicant testified that she was diagnosed with rheumatoid arthritis in 1997 and has been receiving treatment since. Her neck has been surgically fused as have some of her fingers. The applicant entered several medical documents at the hearing to support her testimony that she has a disability. At the hearing, the respondents agreed that it is obvious that the applicant has a physical impairment.

5The applicant described and partially demonstrated her contorted movements in opening the door to the clinic which involved first hooking her better hand through the handle and pulling the door far enough for her to insert her foot, and then squeezing her right hip through the opening so that she could turn in a circle, pushing with her backside. Sometimes this manoeuver was very painful, and sometimes the applicant thought that opening the door would cause her injury given her doctor’s advice that because she has severe rheumatoid arthritis, her joints were not stable and her bones could easily break if she were to fall. Mr. Rota had no contact with the applicant that would enable him to comment on any observations of the applicant’s movements, but the clinic's owner, Ms. Fiorito, provided physiotherapy to the applicant and had several opportunities to observe the applicant enter her clinic. Ms. Fiorito agrees that the applicant had problems using the door to her clinic because of the applicant's rheumatoid arthritis. The applicant testified that no one from the clinic ever got up to help her open the door, and Ms. Fiorito did not testify otherwise.

6Ms. Fiorito also agrees with the applicant's allegations that from 2005 to 2009 during which time the applicant regularly attended the clinic, she had pointed out to Ms. Fiorito that the door to the clinic was difficult for her to use. Ms. Fiorito agrees that in October 2010, after the applicant had surgery and had been absent from the clinic for over a month, the applicant came to discuss a post-operative physiotherapy treatment plan, and requested that an automatic door be installed to make the entrance of the clinic accessible. Both women agree that Ms. Fiorito told the applicant to speak with Mr. Rota, the owner of the property, who Ms. Fiorito said would be responsible for changes to the door.

7All the parties agree that the applicant then sent three letters to Mr. Rota. The first, dated November 7, 2010, reads as follows:

Dear Mr. Rota,

As a person with a disability and a client of Amherstberg Physical Therapy, I am writing to request that you install an automated door at the entrance to APT at 38 Victoria St. S., Amherstberg.

I read with interest the November 3, 2010 River Town Times article about the Miracle League wherein you stated, in part, "it is important to support a project that enhances the quality of life for so many people involved."

I trust that you will appreciate that the nature of EPT's business is serving customers with disabilities; an automated door would remove the barrier to those like me who find it not only difficult to open, but could further exacerbate a disability. Being able to independently open a door, for a person with a disability, is a desirable goal as it respects the dignity of the individual.

Sincerely,

Linda Saxon

8The second letter from the applicant to Mr. Rota is stated December 9, 2010. It reads as follows:

Dear Mr. Rota,

I am writing to request a response to my November 7, 2010 correspondence wherein I requested that you install an automated door at the entrance to Amherstberg Physical Therapy at 38 Victoria St. S., Amherstberg.

Sincerely,

Linda Saxon

9The third letter from the applicant to Mr. Rota is stated January 6, 2011. It reads as follows:

Dear Mr. Rota,

On November 7, 2010, I sent you a letter requesting that you install an automated door at the entrance to Amherst for physical therapy at 38 Victoria St. S., Amherstberg.

On December 9, 2010, I sent you a follow-up letter requesting a response to my November 7 letter.

I have received no communication from you regarding my request and have therefore decided to file a complaint with the Ontario Human Rights Tribunal.

Sincerely,

Linda Saxon

10Mr. Rota sent the applicant a response on January 11, 2011. It reads as follows:

Dear Madame:

You wrote to me on November 7, 2010. You also wrote to the Amherstberg Echo which published your Letter to the Editor on December 30, 2010.

Amherstberg Physical Therapy has been a tenant of my company in its present location for nearly 7 years. When the property was first leased, various improvements to be made by the landlord were negotiated. Nearly 2 years ago an extension of the lease was negotiated. At no time (right up to the writing of this letter) have I received any request from the tenant to supply or install an automatic door. It is not my place to tell the tenant what type of door it should have to serve its customers. Any change of the door that the tenant may desire would be a matter for private negotiation between the landlord and the tenant. You should be directing your request to Amherstberg Physical Therapy which would have the primary responsibility for dealing with requests by its customers.

Yours truly,

Rennie Rota

11Ms. Fiorito and the applicant agree that the applicant brought Mr. Rota's letter to her in mid-January 2011, and that Ms. Fiorito stated that it was Mr. Rota, not her, who was responsible for installing the door. After this conversation, all the parties agree that not one of them subsequently raised the issue of the door with another.

12The applicant testified that she had understood from her conversation with Ms. Fiorito in mid-January 2011 that Ms. Fiorito was going to check with her lawyer, and the applicant therefore waited to see what would happen, but was convinced that installing the door was the responsibility of the owner of the property.

13Ms. Fiorito’s testimony differed slightly in that she recalled telling the applicant in mid-January 2011 that she had already checked with “her attorney" and was assured that the landlord respondent was responsible for installing the door, but this difference in recollections is not material. Ms. Fiorito testified that she was also convinced of the numbered company's responsibility on the basis of past experience, because when her roof leaked, Mr. Rota had installed a new roof over the clinic when the old one was leaking, and paid for it. Also, when she discovered a bullet hole in a window of the clinic, he had installed a new one and paid for it as well.

14Ms. Fiorito and the applicant agree that the applicant used the clinic’s services regularly until December 2011.

15The applicant states that she was “fed up" with not seeing a new door, and having to open the inaccessible one in the undignified manner described above. She testified that she stopped using the clinic for the reason that the door continued to be very difficult for her to open, and Mr. Rota would not discuss installing an automatic door with her. She testified that she felt like a second-class citizen, humiliated and angry about being ignored.

16The respondents produced the lease between them. Mr. Rota testified that it was his understanding, on the basis of advice from his lawyer, that the landlord respondent was not responsible for providing an accessible door, and, after writing a letter to the applicant on January 11, 2011, the only time he communicated to her in recent years, he assumed that she would make arrangements with Ms. Fiorito to address the inaccessibility of the door. He thought that he might hear from Ms. Fiorito about the door, but he did not. Ms. Fiorito confirmed that while she discussed various issues with Mr. Rota in 2011 subsequent to seeing his letter to the applicant, they never touched on the issue of the door before the Application was filed. She testified that she felt the applicant would deal with Mr. Rota because she knew the applicant to be capable and independent.

delay

17Section 34(1) of the Code requires that an Application be filed within one year of the date of the last incident to which an application relates unless the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

18The landlord argues that the Application should be dismissed because it is untimely. The landlord argues that the applicant wrote to Mr. Rona on November 7, 2010, alleging discrimination and seeking accommodation, but only “sought to file” the Application on December 29, 2011, more than a year later. The landlord argues that the Application was not completed and accepted by the Tribunal until March 12, 2012, and therefore the alleged discrimination is out of time, particularly given that the applicant knew from the landlord’s January 11, 2011 letter that it would not provide an accessible door. March 12, 2012 is more than a year after the landlord’s refusal letter, and the landlord argues that the Application should therefore be dismissed.

19On January 4, 2012, the Tribunal wrote to the applicant stating that it was in receipt of her Application, “filed on December 29, 2011”, and advising that it would be reviewed for completeness. On February 24, 2012, the Tribunal wrote to the applicant again, referring to her Application “filed on December 29, 2012”. The letter indicated that she need to provide further information on or before March 15, 2012, and stated, “If you provide the HRTO with the requested information in the required time, your Application will be accepted and dated as of the date it was originally received by the HRTO.”

20Rule 6.5 of the Tribunal’s Rules of Procedure states:

6.5. If the Tribunal determines a re-submitted Application can be processed, it will be dealt with as if complete on the day it was originally filed with the Tribunal for the purposes of s. 34(1).

21I find that the Application was filed on December 29, 2011, not March 12, 2012. It was filed within a year of the landlord’s refusal letter of January 11, 2011, and within a year of the alleged discrimination which continued beyond December 29, 2010, as the applicant continued to struggle with the door to regularly access the clinic’s services up to and including December 2011. The Application is not out of time. I therefore deny the respondent’s request to dismiss the Application for delay.

findings and analysis with respect to allegations

22Section 1 of the Code provides:

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

23Section 11 of the Code provides:

(1) A right of a person under Part 1 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 Commission, 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.

24Section 11 focuses on situations “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” (emphasis added).

25There are very few disputed facts. Having heard testimony of the applicant, Mr. Rota and Ms. Fiorito, and having viewed the applicant moving her arms and hands “deformed”, as the applicant described them, by her disease, I find that the applicant has a disability making it difficult for her to manipulate objects with her hands, and her disability made it very difficult for her to access the clinic without an automatic door. She regularly visited the clinic to obtain massage and physiotherapy services, and despite repeated requests to the respondents to provide an accessible entrance, the door was not made accessible for her.

26I find that neither the landlord nor the clinic made any effort to explore with the applicant how she might be accommodated, and no accommodation was provided. The owners of the landlord company and the clinic argued that each believed the other to be responsible, and that is why they neither discussed ways to accommodate the applicant, nor installed the door she requested.

27This leads me to the question of whether either of the respondents may be relieved of the responsibility to accommodate the applicant’s need arising from her disability. The landlord argues that it was providing no service to the applicant, but I note that it had a role in providing facilities, and on that basis, it is appropriately a respondent.

28The clinic argues that its lease with the landlord made the landlord responsible for any repairs or modifications to the door. The landlord argued that the lease would require the tenant to be responsible for the installation of an automatic door and cited the following paragraph of the lease:

Section 11.02 Exterior Maintenance and Repair

Notwithstanding the provisions of section 11.01 above, the lessors shall be responsible for all necessary repair and maintenance of the exterior of the building, and subject to article 1, the cost thereof shall be included in those items charged as additional rent to the Lessee.

29Given that the meaning of the above clause of the lease is ambiguous with respect to a door, I do not see how it provides assistance to either respondent. The Code is remedial in nature, and the applicant should not have been denied access to the facilities owned by the landlord and to the services provided by the clinic simply because the landlord and the clinic attempted to avoid responsibility by pointing to each other. I find that both the respondents violated the applicant’s right to equal treatment with respect to services and facilities without discrimination because of disability.

30I find the applicant told the respondents that it was restricting her and that she needed an automatic door. I find that the door to the clinic, while perhaps perfectly suitable for people without disabilities, creates a barrier for people with disabilities unable to grip and pull, and was a factor or requirement for entry which resulted in the restriction of the applicant. The respondents have not produced any evidence or argument that the inaccessible door was reasonable and bona fide in the circumstances, nor have they provided any evidence or argued that they could not have accommodated the applicant without undue hardship. I therefore find that the respondents’ failure to meet their duty to accommodate the Code-related needs of the applicant violated the applicant’s right to equal treatment without discrimination because of disability. See similar cases such as Wozenilek v. 7-Eleven Canada, 2010 HRTO 407; and Dixon v. 930187 Ontario, 2010 HRTO 256.

remedies

31The applicant is seeking the following remedies:

a. Training for the landlord on the Code and the Accessibility for Ontarians with Disabilities Act that must be proven completed by the provision of “certificates of completion” to the applicant.

b. The installation of an automatic door with a 4” diameter push button.

c. General damages in the amount of $20,000.

32The respondents stated at the hearing that if the Tribunal were to find that the applicant's right to equal treatment had been infringed because of the door being inaccessible, then they would agree to split the cost of installing an automatic door should the tribunal order one.

33Section 45.2 of the Code provides:

(1) On an application under section 34, 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:

1. 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.

2. 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.

3. 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.

(2) 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.

Training

34It is obvious that the landlord does not appreciate its obligations under the Code with respect to making its facilities accessible to people with disabilities. As such, I find it appropriate to order that the landlord retain a consultant with expertise in human rights, disability and access who will provide training to Mr. Rota and any managers on its obligations under the Code with respect to accommodating disability. The issue of whether any other Act was violated was not before me, and I find that it is not appropriate to order training in legislation other than the Code.

35By June 1, 2014, the landlord shall provide the applicant with a copy of a letter from the consultant verifying that the training is completed.

Installation of Automatic Door

36The applicant testified that she did not know if she would return to the clinic because she was afraid she might receive a hostile reception after having participated in this process, but she explained that she lives in a small community where the clinic is convenient and services elsewhere are distant. I therefore find it appropriate to order that the respondents install an automatic door which is accessible to the applicant in the case that she decides to try accessing the facilities and using the services again.

37The respondents shall install an automatic door with a 4” diameter push button by June 1, 2014.

Monetary Compensation

38An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. The Divisional Court has also recognized that humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc. v. Lane 2008, CanLII 39605 (ON SCDC), at para. 153.

39The applicant is seeking $20,000, but I find that such a high amount is not justified given the case law. I find her circumstances similar to the applicant’s in Wozenilek, supra, where I awarded $6,000 for compensation for injury to dignity, feelings and self-respect. Mr. Wozenilek was a regular customer who used a wheelchair and had been unable to enter the respondent’s store unless someone passed by who could open the door for him. Almost two years after the applicant in that case asked for an automatic door, and after he filed his Application, the respondent in that case installed one. At no time did the applicant in this case find herself shut out, as she managed with a struggle to enter, but I am conscious that the process of letting herself into the clinic might have been just as humiliating, if not more so, than waiting for someone to arrive. In this regard, I have taken into account her testimony with respect to not only the objective impact (i.e. the difficulty in opening the door described in para. 5 above), but also the subjective impact (see above at para. 15) of having to struggle to get into the facility. I find that it did have a negative impact on her dignity. Overall, however, I see no reason to award more than $6,000 for the applicant’s injury to dignity, feelings and self-respect.

order

40Accordingly, the Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondents shall pay the applicant $6,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect.

2. Post-judgment interest at a rate of 3% is payable on any amount of the award of monetary compensation for injury to dignity, feelings and self-respect not paid within 30 days of the date of this Decision.

3. The respondents are jointly and severally liable for the awards of monetary compensation.

4. The landlord must retain a consultant with expertise in human rights, disability and access who will provide training to Mr. Rota, and any managers, on the landlord’s obligations under the Code with respect to accommodating disability, and the landlord must provide to the applicant by June 1, 2014, a copy of a letter from the consultant verifying that the training is completed.

5. The respondents must install an automatic door with a 4” diameter push button by June 1, 2014. The respondents are jointly and severally liable for the installation of the door.