Remtulla v. The Athletic Club (Trainyards) Inc., 2014 HRTO 940

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruhaina Remtulla

Applicant

-and-

The Athletic Club (Trainyards) Inc.

Respondent

DECISION

Adjudicator: Paul Aterman

Date: June 25, 2014

Citation: 2014 HRTO 940

Indexed as: Remtulla v. The Athletic Club (Trainyards) Inc.

APPEARANCES

Ruhaina Remtulla, Applicant

Alayna Miller, Counsel

and Self-represented

The Athletic Club (Trainyards) Inc., Respondent

Brian McDonald, Counsel

Introduction

1Courts have described the search to accommodate a disability as a collaborative process in which all parties concerned engage in good faith efforts to find a solution that may not be perfect, but is reasonable (see Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at paras. 43-45 (“Renaud”)). Those principles apply, whether the request for accommodation arises in the context of employment (as in Renaud) or, as in this case, in the context of the delivery of services (see Fisher v. York University, 2011 HRTO 1229 at para. 43).

2Here that process started well, with a constructive dialogue between the applicant and respondent. The tone was promising. But over time that conversation went off the rails and has now resulted in this Application, which alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

3The applicant was diagnosed with relapsing-remitting Multiple Sclerosis (“MS”) in 2003. Since then she has experienced a number of symptoms of a neurological nature, including problems with her balance. She walks with a cane. MS has also affected her sight in the form of optic neuritis, which can produce a partial loss of vision. Another effect of MS is that she can easily become fatigued.

4The nature of relapsing-remitting MS is such that while the applicant experiences periods of stability, these are punctuated by episodes when her symptoms worsen or she experiences new symptoms, or both. Dealing with the disease is a daily battle. It has meant that she has had to give up full-time employment. The applicant has good days and bad days.

5Exercise is very important to both her physical and psychological well-being. It enables her to increase her strength and mobility. The sense of achievement she derives from those physical gains also supports her psychological resilience in dealing with the unpredictable and demoralising relapses that come about on those days when her symptoms worsen.

6She prefers to participate in group exercise rather than working out on her own. The group dynamics and the social setting are motivators. The applicant is more likely to stick with her program if she is not exercising alone. Going to group classes and working out with non-disabled people also makes her feel that she is not isolated by her disability. She likes going to Zumba classes for the movement, the music and the sociable atmosphere.

7The respondent Athletic Club (or “TAC”) operates a number of private athletic clubs. The one in this case is located in Ottawa. Its facilities include a gym, pool, yoga, exercise and dance studios. Members can participate in a large number of group exercise classes, some of which have a dance theme, such as salsa or Zumba. The respondent’s brochure describes its Zumba classes as offering:

A Latin inspired dance-fitness class that incorporates Latin and International music and dance movements. It’s fun, easy and effective!!! A great cardiovascular workout.

8For a number of years the respondent has offered some of its Zumba classes in studios where the lights are dimmed and a disco ball is turned on to recreate a nightclub atmosphere. I will refer to these as “lights-off” classes.

9Before she joined the club the applicant told the respondent she has a disability and needs accommodation. She flagged a concern about the lights-off Zumba classes and later requested that the respondent accommodate her attendance in Zumba classes. She also indicated that she needed a designated area at the back of the two dance studios to be kept clear so she could work out while using the back wall as an assistive device. She also requested the installation of a grab bar on the back wall of each studio as a second assistive device. These three requests started the dialogue between the parties about accommodation.

10The applicant alleges that the respondent failed to accommodate any of these three requests and that when she asserted her right to accommodation the club retaliated by threatening to remove her membership.

the issues in this case

11The Code prohibits discrimination in the delivery of services on the basis of disability (s.1), and there is no dispute that the applicant is disabled within the meaning of s. 10(1) (a) of the Code. Where a disabled person requests accommodation for their disability-related needs in the delivery of a service, the service provider is required to make that accommodation unless doing so would cause it undue hardship (s.11(2)).

12As noted above, the search for solutions to accommodation requests requires good faith efforts on the part of both parties. Where an appropriate solution is identified, the service provider is to make reasonable efforts to implement it (see Renaud at para. 37).

13With respect to the applicant’s requests for accommodation, the issues are whether the parties engaged in a good faith dialogue to find solutions to her requests, and if so, whether the applicant’s disability was in fact accommodated.

14The applicant also alleges reprisal. In s.8 the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

15To prove an allegation of discrimination an applicant does not need to show that the respondent had the intent to discriminate. What matters is the impact. By contrast, where reprisal is alleged the applicant must show that the action was taken with an intent to punish or retaliate: Noble v. York University, 2010 HRTO 878 at para. 31.

16The issues to be determined with respect to the reprisal allegations are whether the respondent intended to retaliate against the applicant because she had asserted her rights under the Code and whether it actually took or threatened to take actions in reprisal against her.

17I find that the applicant did not participate in the accommodation process in that she made a deliberate decision not to respond to reasonable requests by the respondent about the issue of lighting in the Zumba classes. I also find that the respondent’s efforts to keep the designated area in each studio clear were reasonable. Those allegations of discrimination are dismissed. I find that, while the respondent installed a grab bar in each studio, it put it in the wrong place in one of the studios. When the applicant pointed this out, the respondent deliberately refused to discuss moving it. This refusal was discriminatory, and the Application is allowed in relation to this allegation alone. Finally, I find that no reprisal occurred. The reasons below explain why.

the hearing of this application

18This Application was heard over five days in March (when she was represented by counsel) and May of 2014 (when she represented herself) and the parties filed written submissions by June 13. Much of the evidence is in the form of emails and letters between the parties. However, there is dispute about the meaning of some of the documentary evidence and the oral testimony revealed conflicting accounts of some events. To decide what happened requires an assessment of credibility.

19The approach to assessing credibility is set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

20The Tribunal has also noted that the following are factors in assessing credibility: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence. See Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

21The applicant gave evidence, as did her neurologist, Dr. Giaccone. He is highly experienced, his evidence was uncontested and I accept it. It confirmed what the applicant said about her symptoms. He made it clear that he encourages his MS patients to be active, that the best way to achieve this is for patients to engage in activities they like, but that he does not specify what kinds of activity they should take part in. He was of the view that the applicant’s participation in lights-off Zumba classes would not be advisable because of her difficulties with vision and balance. For patients, such as the applicant, who are at risk of falling because of problems with balance he recommends the use of assistive devices.

22The respondent’s oral evidence came from David Wu, who is a managing partner of the respondent; Paige Phillips, who is the respondent’s Human Resources Manager; and Laura Simons, who is a Customer Service Manager at the club.

context

23In delivering services to the public the respondent has a duty to accommodate disabilities up to the point of undue hardship. What constitutes undue hardship is not decided by referring to some abstract standard. It depends on the context in which the request is made. Here it means looking at the respondent’s operations and assessing the impact of accommodating the applicant’s requests to see if there would be an undue burden in doing so.

24The respondent operates a 65,000-square foot facility that has around 12,000 members. On any given day between 1800-2200 members will use the facility. Member use peaks in January, with New Year’s resolutions, and is at its lowest point in the summer. There are about 200 employees. These include permanent employees as well as part-time instructors who come in to teach a few classes each week. Every day there are about 25-30 employees on the premises, depending on the time of day.

25Zumba classes are offered in a studio for women only (“the women’s studio”), in a co-ed studio, in what is called the Sky Studio, and in the pool. For the purposes of this decision, what matters is what took place in the women’s studio and the co-ed studio.

26The Zumba classes in the women’s studio always have regular lighting. At all relevant times lights-off classes were only offered in the co-ed studio. Between 30-40% of all Zumba classes offered by the respondent were lights-off classes.

27Before the applicant requested accommodation in relation to the lighting in the co-ed studio, the respondent’s schedule did not specify which Zumba classes in that studio were lights-off classes and which were not. The uncontested evidence is that by going to the classes participants would come to know which instructors use regular lighting and which instructors lead lights-off classes. A newcomer to the club would only find this out through personal experience and by word of mouth.

28The reason the respondent offers lights-off classes is because some club members like the nightclub atmosphere created by the darkness and the use of disco ball lighting. Both David Wu and Paige Phillips also stated that some members feel self-conscious about their body image and prefer not to be seen dancing in front of others in classes with regular lighting. The evidence of both witnesses is that the respondent gains a competitive advantage from being able to offer both lights-off classes and ones with regular lighting.

29The evidence of a competitive advantage is all anecdotal. The respondent does not keep statistics on customer attendance in particular classes. It reviews and adjusts its schedule on a quarterly basis, depending upon the popularity of classes, customer feedback and trends in the business (for example, according to Mr. Wu, step classes are now “out”, yoga is “in”).

30The applicant argued that the absence of hard data undermines the respondent’s claim that it benefits the business to offer lights-off classes. She appears to argue from this that the respondent would experience no undue hardship if the Tribunal were to order it to stop offering any lights-off classes. I do not need to decide the issue of undue hardship because of my finding below that the applicant did not participate meaningfully in the process to accommodate her attendance at Zumba classes.

the applicant’s requests for accommodation

31In this section I review how the requests for accommodation arose and then I deal with each of the three requests.

After she tours the facilities with Ms. Phillips, the applicant sets out her requests

32Before joining the club the applicant set out a series of accommodation requests in an August 10, 2012 email to the respondent. The requests included having a chair placed by a wall in each of the studios so that she could rely on both the wall and chair for support; a request that roller shades be installed in the co-ed gym because the curtains make the room too dark; and a request that an accessible shower stall be put in closest to the women’s change room, as it is too dangerous for the applicant to walk along a slippery floor using a cane to get to the accessible stall that is located at the far end of the series of shower stalls.

33The applicant signed a membership agreement on August 16, 2012. After having made some use of the club, she sent another email to the respondent on September 26, 2012. This one thanks the respondent for having implemented some of the measures requested by her earlier and sets out requests that areas at the back of the co-ed and women’s studio be kept clear so she can exercise in those areas (I will refer to these as the “accessible areas”) . She also asks that a grab bar be installed in each of those areas.

34Paige Phillips then contacted the applicant, proposing that she and the applicant walk through the facility in order to “…review your concerns as well as come up with some proposed solutions for the team”. The walkthrough took place. The parties do not agree whether it happened on October 19 or November 4, 2012, but nothing turns on that disagreement.

35On November 6, 2012, Ms. Phillips sent the applicant a status update on their discussions. In this email the respondent undertakes to review with its managers the company’s Accessible Customer Service Policy, which is designed to guide staff in responding to accommodation requests from members. It also commits to issuing a memo to all Group Fitness Instructors telling them to keep an area at the back of both the co-ed and women’s studios clear at all times so that it could be used by the applicant and anyone else needing to do so. The respondent says that it will install grab bars in the accessible areas in both studios. It commits to modifying a shower stall as requested by the applicant. It also says that it will address an issue raised by the applicant about accessible parking spots outside the club. The respondent undertakes to identify on its website which Zumba classes will be lights-off and says that it will consider the applicant’s request to have roller shades installed in the co-ed studio.

36Ms. Phillips’ email also tells the applicant that the respondent does not want her to lean on the mirrors on the back wall of the women’s studio as it is concerned that this could cause them to crack and pose a safety hazard. Finally, it indicates that the club policy is that members can enter a class 5-10 minutes late, but not any later. It encourages the applicant to plan around this rule in order to access the studio safely and to seek the assistance of class instructors, if necessary.

37The applicant responded on the same day. Her email indicates that she is pleased that the respondent has agreed to modify the shower stall, designate areas at the back of the studios to be kept clear and install grab bars. She disputes the suggestion that she asked to lean on the mirrors. Instead she explains that she suggested during the tour of the facilities that some of the mirror panels in the accessible area at the back of the women’s studio be removed. The respondent seems to have acknowledged this clarification in that it removed the mirror panels when it installed the grab bar.

38The applicant also disputes that she asked to enter class late. Rather, her email specifies that she was requesting that the respondent ensure that the area at the back of each studio be kept clear of obstructions, so that she would not have to seek help to have those areas cleared, which could in turn result in her starting a class late.

39In relation to the respondent’s statements that it is reviewing the applicant’s request for roller blinds to be installed in the co-ed studio and that it will update its website to show which Zumba classes are lights-off, the applicant expresses dissatisfaction. She demands that the respondent acknowledge that the lighting in the lights-off classes is inadequate. Her response suggests that the lighting poses a risk, not just to her because of her disabilities, but to all participants. She also states that the use of disco lights can cause migraines or an accident. It is not clear from the way she expresses herself that this last concern is particular to her, or whether she thinks that these are reasons the respondent should not offer lights-off classes to anybody.

40Between November 6, 2012 and December 5, 2012, emails are exchanged between the applicant and Paige Phillips. As the applicant is dissatisfied with the position of the respondent, Ms. Phillips proposes to schedule a conference call or a meeting to discuss the outstanding issues. Although the parties exchanged emails about scheduling a call and the applicant prepared an agenda, the call never took place.

41In my view the reason it did not is that on December 20, 2012, Paige Phillips sent the applicant an intervening email that set out the respondent’s position on, amongst other issues, the placement of the grab bar in the co-ed studio and the scheduling of lights-off classes. In her January 8, 2013 response to this email, the applicant disagrees with the respondent’s position and notifies it that she has filed her Application with the Tribunal. At this point the dialogue breaks down and most of the correspondence between the parties after that is coloured by the fact that litigation has now started.

The scheduling of lights-off Zumba classes

42I am of the view that the applicant’s unwillingness to participate in lights-off classes reflects a genuine need related to her disability, as opposed to a simple preference. Although she has tried lights-off classes at times, her evidence is that she feels she is at risk of falling in the dark. Her oral evidence is corroborated by contemporaneous communications to the respondent in the form of emails that express this concern. Further, as noted above, the unchallenged evidence of Dr. Giaccone is that he would not recommend her participation in lights-off classes for the same reason.

43In her December 20, 2012 email Paige Phillips confirms that the respondent will now indicate on its schedule which Zumba classes will have regular lighting in the co-ed studio. She also writes:

We offer some classes with black light and some that do not have it to best serve all members. It would be greatly appreciated if you could advise specifically what concerns you see with this moving forward as we endeavour to fully understand your needs. Specifically we would like to consider the days and times of classes that anticipate [sic] using the club routinely to assure that classes that satisfy your needs are available to you.

44The applicant responds by email on January 8, 2013, but does not provide her schedule as requested. Instead she accuses the respondent of increasing the use of inadequate lighting in classes, using manipulative language and dishonesty regarding the lighting issue, and encouraging instructor hostility towards participants who require accommodations. The day before she sent this email the applicant had attended a lights-off class and had unplugged the disco light during the class. The club has a policy of not allowing members to tamper with equipment such as lighting or fans.

45In cross-examination the applicant was asked why she did not respond to this request to communicate her anticipated schedule. She said that she probably overlooked that request as she did not read the email from Paige Phillips closely.

46This answer is not credible. Throughout her extensive email correspondence with the respondent from August 2012 to November 2013, the applicant provides detailed answers to every issue raised by the respondent. She also raises numerous issues on her own that are not the subject of this Application, but have to do with issues surrounding the accessibility of the club, including the respondent’s compliance with the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (“AODA”). There is a consistent pattern of the applicant being intensively engaged in these issues and of her parsing the respondent’s communications with meticulous attention to detail. It is not believable that she overlooked the respondent’s request in relation to a core issue in her dispute with the respondent, particularly because she spends a great deal of effort throughout the correspondence in setting out her position on the use of lights-off classes. In fact, her response argues with Paige Phillips’ use of the term “black light”, which belies her claim that she did not read the following two sentences in that passage which I have excerpted above.

47My conclusion in relation to this issue is that the applicant deliberately ignored the respondent’s request for her schedule because she feels that it is not a legitimate request.

48The applicant continued to attend Zumba classes in the co-ed studio. She testified that the respondent’s approach to lights-off classes was inconsistent in that it had said it would specify on its schedule which classes would be lights-off or not, but did not adhere to what was published on the schedule.

49I agree with the applicant that the respondent was inconsistent in its approach. There are two reasons for this. One is that the schedule for the period January-June 2013 only identifies some classes as having regular lighting and does not include all of the classes of those instructors who never offer lights-off classes. In other words, the schedule only partially matched the respondent’s actual practice. This changed when the schedule for June-September 2013 was issued, as it identifies more comprehensively which classes will have regular lighting.

50The other reason the respondent was inconsistent in its actual practice is because the applicant refused to respond to the request by the respondent to communicate which Zumba classes she would likely be attending. As a result the respondent could not consider if and how it might adjust its schedule to advertise which classes had regular lighting. Paige Phillips testified that after the applicant filed her Application, staff at the club were afraid of getting into conflict with the applicant because they knew that these proceedings had begun.

51The consequence of this was that when the applicant appeared at the club or emailed to announce that she would be coming the next day, the respondent would adjust the schedule on an ad hoc basis to ensure that regular lighting would be used, sometimes in classes where the instructor had planned a lights-off class. For example, this took place on April 17, 2013, when one of the managers, Natasha Burnett, overruled an instructor who was planning to give a lights-off class because the applicant arrived and asked Ms. Burnett to ensure the class would have regular lighting. The instructor objected and said that other members would be upset at this change, but was directed by Ms. Burnett to not use disco lighting.

52Paige Phillips’ evidence, while hearsay on this point, is corroborated by emails between the respondent’s staff and from the applicant to the respondent on April 17, 19 and May 23, 2013 that are consistent with her account. Moreover, in her evidence the applicant did not take issue with the fact that she was communicating her schedule to the respondent in an ad hoc way at that time and that the respondent was accommodating it. She was pleased with this arrangement, as in her view this was the right way to accommodate her request.

53The respondent did not share that view. This is reflected in the following email, sent from Steve Hall to the applicant on May 24, 2013:

We continually endeavor to accommodate all members to the best of our ability and have previously expressed to you that we were open to allocating specific classes that align with your anticipated workout routine. Unfortunately we cannot guarantee that this accommodation can be made seamlessly when you arrive on a random basis, We also need to be able to plan for members who enjoy the experience of a Zumba class with disco lights, For this reason, we are again respectfully requesting that you forward your projected schedule so that we can make adjustments to our scheduling in an effort to alleviate the discomfort you have experienced when arriving at a Zumba class not marked "no disco lights".

54This email was sent to the applicant after she had attended a lights-off class on May 22. She had attempted to get the instructor’s attention in order to have the instructor turn the lights on. When that failed the applicant unplugged the disco lights herself during the class and then went to find a manager to intervene in the situation. By the time the applicant had returned to the co-ed studio the instructor had turned the lights on and the class continued under regular lighting.

55The applicant’s response to Steve Hall on May 27 is to criticise the use of lights-off classes as a barrier to her own participation and as a general safety hazard. She states that the respondent can figure out for itself what her schedule is by consulting its records of her past attendance, as the respondent uses a system that records the date and time on each occasion that members swipe their access cards to enter the club. She then also states:

The email of April 2013 and other dates indicate which classes I anticipate and/or regularly attend (in Co-ed gym).

56In cross-examination, the applicant stated that she felt that this was an appropriate answer to Steve Hall’s request. I do not find this to be credible. Steve Hall’s request is clear, and the applicant is not sincere in her response to him. The emails she refers to from April 2013 are ones where the applicant informs the respondent the day before of her intention to attend a Zumba class the next day. They do not communicate an anticipated schedule her attendance. Rather, they amount to ad hoc information that the applicant is going to attend the club in the following 24 hours.

57In addition, even if it were reasonable to require the respondent to attempt to discern a pattern of attendance by reviewing the applicant’s attendance records and matching the entries to days of the week, the applicant’s pattern of attendance is not so consistent that the respondent could reasonably be expected to rely on it to predict her future attendance. It is clear that she attends at certain times fairly regularly, but there are sometimes long gaps in her attendance and at various times she enters the club at times that depart from her pattern of attendance.

58In any case, it was not reasonable for the applicant to answer the respondent’s straightforward request in the cryptic and unhelpful manner in which she did. All she had to do was set out when she expected to attend. The respondent would then have been obliged to explain either how it would adjust its class schedule to accommodate the applicant’s personal schedule or, if not, to explain why not and/or what it would propose as an alternative.

59This issue is raised again on June 10, 2013, when counsel for the respondent writes to the applicant:

Going forward, we intend to offer several Zumba classes per week that meet your accessibility requirements. Please check the website to see when those classes are. That schedule may vary from time to time (as all class schedules do), but we will continue to offer classes that you can attend. However, if you attend a class that is not on the schedule as meeting your accessibility requirements, you are not to disrupt the class by unplugging the lights or attempting to change the nature of the class. Any disruptions of classes, or any other violations of the terms of your membership or The Athletic Club's policies, including harassing employees, will result in penalties under the membership policy up to and including the termination of your membership.

60On the same day the applicant responds to this message as follows:

TAC response to increased lighting (i.e. regular lighting on and/or all curtains open to allow for lighting) and "non-use" of disco lights during the following zumba classes is a YES as discussed in mediation for HRTO File # 2013-13409-1:

• weekdays 9:30 AM and 5:30 PM;

• weekends - 11AM

Furthermore, and again - pls clarify if I understand correctly: In the event the instructor has forgotten to implement the reasonable accommodation measure of ensuring adequate lighting in zumba class I am to open the curtains directly beside me (to allow for light so I can see floor in front of me) and unplug disco lights (plug is in designated access area) since again, neither "hardship" nor "undue hardship" are cited by TAC Trainyards - as per TAC brand of AODA policy.

61Counsel for the respondent then writes:

TAC's response to your requests with respect to lighting was very clear and TAC has accommodated you to the point of undue hardship. TAC offers several classes a week that meet you can attend [sic]. TAC will continue to offer those classes. TAC is NOT stating that all weekdays at 9:30 am and 5:30 pm and all weekends at 11 am will meet your specifications. Please consult the schedule to see which classes you are able to attend. They will be clearly marked on the schedule. Additionally, there are many, many other classes you can attend that are all offered in full lighting.

The schedule contains classes that meet your specifications. TAC has provided these classes in order to accommodate you, and has reached the point of undue hardship in its accommodation. If you attend those classes, no instructor will have “forgotten” to ensure adequate lighting. In the very unlikely event they do, you are to contact the front desk and not disrupt the class.

If you attend a class that is not marked on the schedule as meeting your specifications, under no circumstances are you to disrupt the class or make any adjustments to the lights or curtains. That class is set up that way for the enjoyment of other members, and is not a class that TAC has set up as part of its accommodation of you. You are welcome to attend that class, but you will attend it under the conditions set by the instructor.

Any attempt by you to adjust the lights or curtains or anything else in any class (whether a class in which you are being accommodated or not) will be treated as a disruption of that class, and you will be subject to penalties, up to and including the termination of your membership.

62In relation to this exchange the applicant’s position is that she communicated her schedule to the respondent as it had asked, and this shows that she was engaged in a dialogue around her accommodation request.

63As is indicated in Renaud at paras. 43-45, the applicant is required to respond reasonably to a request. I find that she did not do so here. First, in the preceding exchange between the applicant and respondent’s counsel, the respondent had made it perfectly clear that the applicant was not to tamper with equipment such as lighting. The suggestion by the applicant that respondent’s counsel was telling her that it would not be a problem for her to attend a lights-off class and disrupt it by unplugging the disco lights is obviously disingenuous.

64Second, in identifying her schedule for attendance at Zumba classes in the co-ed studio as weekdays at 9:30 and 5:30 and weekends at 11, the applicant was identifying all of the classes on offer in the co-ed studio except two that were offered at 7:30 p.m. (one of which is advertised as having regular lighting). The applicant does not attend the club in the evenings. In addition, she has rarely attended a 9:30 a.m. class (entry records show that she entered around 9:30 a.m. six times in the period from August 1, 2012 to January 9, 2014) and she most frequently attends 10:30 a.m. classes in the women’s studio (where no lights-off classes are ever offered). The attendance records show that she generally attends Zumba classes in the co-ed studio once or twice a week. Her proposal was out of proportion to her actual use of the facility.

65The applicant had twice refused to provide her schedule to the respondent. In my view, when she then proposed a schedule to respondent’s counsel she did not do so in good faith. Rather than trying to set out when she thought she would be attending the club, she provided an answer that was aimed at getting the respondent to stop offering lights-off classes in all but one of the scheduled slots in the co-ed studio, that being one in the evening.

66By asking the applicant to provide her schedule the respondent wanted to avoid situations that occurred in the period of April and May 2013 when the applicant would show up for classes that were scheduled to be lights-off and the respondent would accommodate her on an ad hoc basis. When it did this, the instructor who had planned a lights-off class and the other participants who attended because they understood it would be a lights-off class were faced with a last-minute change. I find that it was reasonable for the respondent to attempt to balance the applicant’s attendance against its wish to offer Zumba classes both with and without regular lighting to its broader membership. Asking the applicant to set out her anticipated schedule was a first, and perfectly reasonable, step in that process. However, the applicant did not engage in a discussion of her accommodation request in good faith. For these reasons this allegation is dismissed.

The request to keep the areas at the back of each studio clear

67The respondent takes no issue with the fact that the applicant needs to work out in an area that is close to a wall so that she can use the wall as an assistive device by balancing against it if necessary. The respondent introduced video evidence from its security cameras of the applicant exercising in the women’s studio, and the video shows the applicant using the wall for support.

68After she and the applicant did a walkthrough of the facilities in October or November of 2012, Paige Phillips sent a memorandum to all the club’s group fitness instructors on November 6, 2012, with a copy to David Wu and Steve Hall. The memorandum is titled “Accessibility Accommodations for members with Disabilities” and is sent on behalf of “TAC Management”.

69The memo explains to instructors how they are to deal with requests for accommodation. It provides useful guidance to instructors to enable them to try to ascertain whether a request from a member is in fact a request for accommodation of a disability, as opposed to an expression of personal preference. It counsels instructors to be empathetic and open-minded, not to commit to making permanent changes without consulting management, to avoid stereotyping assumptions about the nature and level of assistance a particular member with a disability may require, and to learn by asking.

70The memo then states:

Please be advised that we are currently reviewing accessibility features at both locations and anticipate the addition of the following at each club:

1. Automatic door openers entering Women's Only workout area and Section

2. Spaces in the studios allocated specifically for individuals with disabilities, to be marked and outfitted with grab bars.

*while we work to have these items installed, please ensure that there is 1 chair in each studio at all times (available for member use) and the space between the windows in the Coed Studio remains clear and free of equipment. The back wall next to the water fountain in the Women's only area will also need to be kept clear and accessible. If a member requests your assistance in having other members relocate to make these spaces available to them, you are responsible for politely and discreetly approaching them to accommodate the request.

71The memo ends with the following directions about implementing the respondent’s approach to accommodating members with disabilities:

As a reminder, all employees are responsible for complying to [sic] policies as outlined and agreed upon in training. Failure to comply or demonstrate service standards as mandated can result in disciplinary action up to and including termination. We strongly encourage you to approach any member of the leadership team to gain assistance at any point in time should you be uncertain of the best course of action.

Please acknowledge your receipt of this memo to Paige via e-mail to [email address].

72The respondent installed a universal access sign to identify each of the designated accessible areas in the women’s and co-ed studios.

73While the memo directs fitness instructors to ensure the designated accessible areas are kept clear, the respondent had in place additional measures to do so.

74The evidence of Paige Phillips and Laura Simons is that the respondent directs all of its staff to identify and remove risks to the health and safety of club members and to its own staff that are posed by equipment and personal belongings of members left lying around. The club is large facility with a high volume of members passing through every day. The most common risks are from gym equipment that is not put back in its proper place and from members’ towels, water bottles and items of clothing that are left on the ground. In the winter there is a perpetual problem with boots that members fail to put on the racks the respondent provides.

75To deal with this risk the respondent’s training of its employees requires them all to adopt an approach it describes as “there’s no such thing as it’s not my job”. In other words, every employee is responsible for clearing away any hazard that she or he sees. In addition, the managers on site are required to walk through the facility every day to make sure that obstacles are cleared away. Laura Simons’ evidence is that she conducts between one and three such inspections per day and that the other managers do the same. Over the course of the club’s opening hours there are at least three managers on site, with two managers overlapping their shifts between 12 and 6 p.m. The inspections include looking to ensure that the designated accessible areas are kept clear.

76There is no dispute that the respondent undertook to keep the designated accessible areas clear at all times. However, it is not to be held to a standard of perfection. Thus the issue to be determined in relation to this allegation is the extent to which the respondent upheld its commitment by making reasonable efforts to keep the designated areas clear. If it did not, then this would amount to discrimination.

77From the time the memo to fitness instructors is issued in November 2012 until April 17, 2013, the applicant does not raise any concerns about a failure to keep the designated accessible areas clear. She testified that an email she sent to the respondent on January 14, 2013 raised this issue, but that email makes no reference to the accessible areas. Rather it states that she could not access the bench area in the women’s change room because there were too many winter boots in the way.

78On April 17, 2013, the applicant mentions that the cord for the disco lights in the accessible area of the co-ed studio was dangling and she almost tripped on it. The respondent does not deny that this occurred.

79In a May 27, 2013 email, the applicant notes that in one class a cart of exercise balls blocked the designated accessible area. She does not specify the date or indicate whether it happened more than once, but she then states:

However, when I informed Natasha of the inaccessibility caused by certain behaviours - the blocking of grab bar and designated accessible area with a cartful of bosu balls - it stopped. Thank you, Natasha.

80The applicant does not raise any further concerns until October 7, 2013. The respondent does not dispute that a heavy fan was in the designated accessible area of one of the studios, and that it should not have been there. The applicant unplugged the fan and David Wu sent her an email on October 14. It told her not to tamper with equipment or she could face sanctions, up to the termination of her membership.

81The video evidence of the applicant exercising in the women’s studio is from November 7, 12, 14 and 21, 2013. On each of these occasions a cart of balls is obstructing the designated accessible area. The video also shows the respondent’s staff arriving with the applicant at the start of the class and clearing the area.

82The evidence of Laura Simons is that around this time she became aware that the cleaners at the club were not moving the carts of balls out of the designated accessible area when they finished cleaning. She raised this at a manager’s meeting and contacted the cleaners to rectify this. She testified that the applicant acknowledged that this intervention was effective, and the applicant did not challenge this.

83Ms. Simons acknowledged in her testimony that there were often times when members would place their clothes, gym bags or water bottles in the accessible area and that she would remove them. She told the applicant to contact her if she was aware of any problems in keeping the area clear and would often walk up to class with the applicant in order to ensure that the area would not be obstructed.

84In a December 2, 2013 email, the applicant complained of an instance where neither Ms. Simons nor any other manager was sent up to the co-ed studio to check the accessible area. On that day and at the request of the applicant the instructor cleared away water bottles that were in the designated accessible area. The email complains that the instructor had departed from her usual practice of telling participants at the start of the class not to put their personal possessions in the accessible area.

85Apart from this incident the applicant did not suggest that Ms. Simons or any of the respondent’s other employees refused or were reluctant to check to see whether the designated accessible areas were clear. Nor did she suggest that there were incidents where staff were aware of an obstruction but were reluctant to clear it away.

86The applicant says that she should not be put in a position of having to ask on a constant basis for the accessible areas to be checked and cleared. In her view the respondent should have systems in place to ensure that this is done as it is humiliating to have to ask. Ms. Simons’ evidence is that there is no need for the applicant to ask for someone to accompany her to class to check on the area as the systems are in place and they work. She does not deny that there are times when a water bottle or article of clothing has to be moved from the accessible area, but that the problem has steadily diminished as the respondent’s staff are aware of the need to keep these areas clear.

87I find Ms. Simons’ evidence on this point to be more credible than the applicant’s. A feature of this dispute has been the tendency of the applicant to document in detail every instance where she believes the respondent does not respect the spirit and letter of both the Code and AODA, yet the instances where the respondent is said to have failed to keep the accessible areas clear are set out above. They are not many and, with the exception of the two times when an electrical cord and a fan were blocking the accessible areas, the respondent’s staff acted immediately to clear the areas of obstacles. If there were a problem of the magnitude claimed by the applicant, then this would be reflected in the documentary record, but it is not.

88In my view this conclusion is supported by the fact that the respondent took formal measures to keep the areas clear and the evidence suggests that these were reasonably effective. The memo to fitness instructors is a clear direction to them to assist the respondent in complying with its Code obligations. The applicant’s own December 2, 2013 email suggests that the instructor in that class usually tells class participants to keep the accessible area clear. Similarly, the record of interviews conducted by the respondent with fitness instructors Mary Ruth Mayo and Carmen Rosillo in December of 2013 indicates that their practice is to ensure that the areas are kept clear. The content of these documents suggests that the directives in the memo to instructors were being respected.

89In addition, the applicant did not take issue with the fact that managers are required to conduct visual inspections of the club several times a day that are aimed at identifying and removing trip hazards in the form of equipment or member possessions.

90The formal measures taken by the respondent were supplemented by the willingness of Laura Simons to accompany the applicant to class whenever she requested in order to check on the area. While this may have been more than what the respondent would reasonably be expected to do, it nonetheless facilitated the applicant’s barrier-free access to the service provided by the respondent. Ms. Simons’ testimony about the efforts taken by the respondent was clear, consistent and she acknowledged frankly that there were times when there were obstructions in the areas.

91Although there are instances where the accessible area was obstructed, the applicant has not shown that the respondent discriminated against her by failing to keep the designated accessible areas clear. The respondent is not held to a standard of perfection in a context where it has limited direct control over the actions of the many hundreds of members passing through the facility every day. It took the applicant’s concerns seriously and made reasonable efforts to keep the accessible areas clear. For these reasons this allegation is dismissed.

The request for a grab bar in the co-ed studio

92To participate in Zumba the applicant relies on two assistive devices, the back wall of the studio and a grab bar. The video evidence shows her using both the wall and the grab bar. Some of the Zumba moves require participants to jump or hop, and the applicant needs to stabilise herself by holding the grab bar in order to do these moves.

93When the applicant and Paige Phillips did their walkthrough of the studios, the applicant asserts that she made it clear that she relies on both the wall and the grab bar, and does so for different purposes. She states that in explaining this she made it clear that the grab bar had to be positioned in such a way that it would not obstruct her reliance on the wall. The applicant testified that she demonstrated this to Ms. Phillips by extending her arms to show her how much space she would need along the wall, and thus where the grab bar should be placed.

94Paige Phillip’s evidence of this conversation is less detailed. She maintains that the applicant told her where she wanted the grab bars located, that she took note of his and that they were installed where the applicant requested.

95The grab bars were installed in the women’s studio and the co-ed studio. The parties agree that the location of the bar in the women’s studio does not pose a problem. In the co-ed studio the designated accessible area is located between two windows and is 5 feet 11 inches wide. The grab bar is installed in the centre of this space and is mounted on a plywood board that is 2 feet 10 inches from the window on either side. The applicant says that its location means she does not have enough room on either side of the bar to use the wall as an assistive device because there is not enough wall space between the bar and the windows on either side of the bar.

96The applicant asked that the respondent move the grab bar in the co-ed studio. First, on November 23, 2012 Paige Phillips writes:

ITEM 3 -'Installation of Grab bars in (3a) Co-ed gym and (3b) women's studio AS DISCUSSED

The grab bars have been purchased and we anticipate having them installed in the coed studio next week as previously discussed.

97The applicant then responds:

3A - Grab bar in the Co-ed gym has NOT been installed as discussed. Go see it and pls [sic] reply by email. Thank you.

98When Paige Phillips proposed sorting out this and a number of other issues by conference call, the applicant agreed to try. In her email agreeing to the call the applicant adds the following regarding the grab bar:

Before I invest any more time and energy into this process, please ensure

1, You have seen the placement of the grab bar in co-ed gym. I know I specificed [sic] (by physically demonstrating) how I use the back wall and as a result - where I requested placement of the grab bar… can’t imagine TAC meant current placement of grab bar in Co-ed gym as a joke…

99As I note above, the call did not take place. On December 20, 2012, the respondent refused to move the grab bar. Its rationale is set out in the following excerpt of its response to the applicant:

Item 3- We have reviewed your request to have a grab bar installed, researched this item and made changes in accordance with operational standards while considering all member needs. We do not anticipate further changes to the grab bar in the coed studio it at this time.

100To this the applicant answered on January 8, 2013:

TAC Response unacceptable: when we met in October of 2012 I (1) physically demonstrated and (2) explained specifically how I use the entire back wall for support. For this reason the first matter was to ensure items such as the fan and smoke machines were not blocking access to that wall; and not creating trip hazards. You remember this, yes?

So - when we spoke and I physically demonstrated how I use the wall, it was then and there that I clarified a grab bar at either END of the wall, near the window is best placed.

So when I saw a grab bar placed in the MIDDLE of a wall, I thought surely this is an error as it is (a) completely inconsistent with what we discussed several months ago; (b) completely inconsistent with my requests of TAC Trainyards to keep back wall free of clutter/obstacles; and (c) reduces the amount of wall space for use by 50% or more - which is yet again - another inconsistency with what was requested of TAC and agreed as a reasonable accommodation measure several months ago.

Pls provide a potential date as to when this requested accommodation measure will be CORRECTLY implemented. Thank you.

101The respondent’s refusal and its underlying rationale are reiterated in correspondence between the applicant and counsel for the respondent. In its email of June 10, 2013, the respondent states that the applicant has been observed using the grab bar with no difficulty.

102I find that the respondent failed to accommodate the applicant in its placement of the grab bar. Regarding the original discussion between the applicant and Paige Phillips about the placement of the grab bar, I prefer the applicant’s version of that discussion. Her account of what she was requesting and how she demonstrated her need to Ms. Phillips was detailed and consistent with how she uses the wall and grab bar as separate assistive devices. The video evidence of her use of the grab bar, while not recorded in the co-ed studio, is also consistent with her account. Furthermore, the space at the back wall in the co-ed studio is limited, so it makes sense that the applicant would want to maximise the wall space by having the grab bar located on either side of the wall space, but not in the middle of it. By contrast, Ms. Phillips had a limited recollection of what was discussed and simply maintained that she noted down what the applicant asked for.

103In any event, the applicant certainly made it clear to the respondent thereafter that in her view the grab bar had not been put in the right place. The tone of the applicant’s communications excerpted above is demanding and not conducive to constructive dialogue. Initially (in her response to Paige Phillips’ November 23 email) she just says that the bar is in the wrong place, yet does not bother to specify how it ought to be positioned. Later she does so in blunt terms. However, even if the tone of her communications could have been more collaborative, she made it perfectly clear to the respondent that there was a problem with the way the respondent had installed the bar.

104The respondent did not inquire into what the problem was. Instead it just told the applicant on December 20, 2012 that the bar had been installed and would not be moved, citing that in installing the bar it had made “changes in accordance with operational standards while considering all member needs”.

105During the hearing I asked who had taken the decision not to move the grab bar after the applicant raised a concern. David Wu said it was Paige Phillips, as he had delegated responsibility for dealing with the applicant’s requests to her. When I asked Paige Phillips, she said that she could not remember, but that decisions like this would typically have been taken by David Wu. I found the testimony of both Paige Phillips and David Wu on this point to be vague and somewhat evasive. They cannot both be right about who took this decision. In the end it does not matter who decided, what matters is what was decided.

106The respondent’s claim that the grab bar’s placement reflects “changes in accordance with operational standards while considering all member needs” makes no sense to me. Because that phrase sounded like a bureaucratic euphemism to me, I asked Ms. Phillips what it meant. She said that the respondent decided that if at some point in the future more than one member needed to use the grab bar, then placing it in the middle of the wall would enable more than one member to use it at once.

107At that time the respondent was faced with a live request for accommodation from one member only, the applicant. No other member had requested accommodation in the form of a grab bar. In ostensibly balancing the applicant’s request with the hypothetical, future needs of other members, the respondent effectively refused to accommodate the only tangible request it was faced with. In cross-examination David Wu indicated that he believed that the applicant was being vexatious in asking for the bar to be moved. Whether or not Mr. Wu was the decision-maker on this issue, in my view this reflects the real reason underlying the respondent’s refusal: it felt it was being pushed around by the applicant and it decided to push back.

108Over the course of this dispute the respondent exercised restraint in dealing with the applicant. As the dispute progressed many of the communications from the applicant became needlessly aggressive, while the communications back to her from Paige Phillips and other staff members remained polite and professional. However, I find that the placement of the grab bar is clearly linked to the applicant’s ability to fully participate in the classes the respondent offers, and is a genuine need related to her disability rather than a mere preference. The applicant’s evidence about her need to use the grab bar to perform some of the Zumba moves is corroborated by the video evidence. In addition, she relies on the back wall as an assistive device to perform a different set of moves during the class. Because the applicant relies on two assistive devices, the use of one should not be obstructed by the other. She raised a legitimate concern in the context of a dialogue about accommodation and the respondent refused to consider it.

109The respondent argued that because the applicant has since used the co-ed studio with the grab bar in its current place, the accommodation it has made – while not perfect – is reasonable and it should not be required to move the bar. I do not accept this argument. Where the optimal form of accommodation can be achieved through minimal effort, then it should be achieved. The respondent concedes that there is no structural impediment to moving the bar to the edge of the accessible area. The cost of doing so would be insignificant. Had it made reasonable efforts, the respondent would simply have ended up unscrewing the grab bar and moving it by some two feet.

110The 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”)). 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.

111By refusing to engage in discussion with the applicant on this point, the respondent breached the procedural component of the duty to accommodate, and by not moving the bar the respondent breached its substantive obligation to accommodate the applicant. This allegation is upheld.

the allegations of reprisal

112The applicant’s allegations of reprisal are that:

• David Wu wrote to her on October 14, 2013, to warn her that if she disrupted any further classes by such actions as unplugging a fan, her membership could be terminated;
• Counsel for the respondent wrote to applicant’s then counsel on November 21, 2013 to warn her that if she made defamatory statements about the respondent, any of its employees or owners then this could result in legal action and be treated as a violation of the membership agreement the applicant had signed with the respondent; and
• Counsel for the respondent wrote to the applicant’s then counsel on December 4, 2013 to warn her about what it considered to be a number of incidents where the applicant was harassing its staff, to request her to stop and to warn her that it would terminate her membership if there were any further incidents.

113The applicant did not introduce any evidence that any of these communications constitute a reprisal for her having exercised her rights under the Code. Rather, it appears to be her position that it is self-evident from both the text of the communications and the circumstances in which they were generated that the respondent was threatening her for trying to assert her human rights.

114The email from David Wu tells her not to tamper with equipment by unplugging a fan that was put in the studio for the comfort of all class participants. The applicant had already been warned by counsel for the respondent on June 10, 2013 not to tamper with equipment as this is contrary to the terms of the membership contract. The contract requires members to abide by “all rules and regulations reasonably established by The Athletic Club which are posted at the Facilities or otherwise made known to the Member.” In terms of its own legal liability, the health and safety of members and of its own staff, it is reasonable for the respondent to prohibit members from tampering with equipment. In its dealings with the applicant, the respondent made it clear that if the applicant had a problem with equipment or the state of the facilities, she was to seek the assistance of staff to address the problem and not to solve it herself. She repeatedly ignored this. I find that David Wu’s email was a reasonable response to her conduct and there is no evidence that it was coloured by an intent to retaliate against the applicant because she had requested accommodation or brought this Application.

115The November 21, 2013 letter from respondent’s counsel advises counsel for the applicant that the respondent may start legal action if the applicant again states (as it alleges in the letter she already has) that the respondent and Mr. Wu condone harassment. The respondent has a right to defend itself against what may be defamatory statements. Furthermore, the letter states that the applicant has every right to pursue her Application, and that the letter is in no way a reprisal for the applicant having exercised her rights under the Code. A plain reading of the letter is that counsel is doing his professional duty in protecting the rights of his client. There is no additional evidence to support a suggestion that this letter be read as anything other than that. Absent any further evidence, there is no basis to consider that this shows a reprisal against the applicant.

116The same is true of the December 4, 2013 letter. It raises concerns about a number of incidents involving the applicant and members of the respondent’s staff. The applicant has not alleged that any of these incidents amount to discrimination, although mention was made of some of them in passing during the hearing. However, they reflect the deterioration in the relationship between the parties. In the letter the respondent takes the position that the applicant is harassing some members of its staff and that it has a duty under the amendments to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, to protect its staff from such conduct. This letter also makes clear that the applicant is entitled to exercise her rights under the Code, but that a defence of the respondent’s legal interests regarding matters unrelated to her allegations should not be seen as a reprisal. Absent any evidence to the contrary, the letter must be taken at face value as legitimate correspondence between counsel for the parties. There is no basis to conclude that any of these communications constitute reprisal, and this allegation is dismissed.

remedy

117The applicant has requested that the Tribunal order:

1. David Wu and a fitness instructor, Mary Ruth Mayo, to have no contact with her;
2. The respondent to refrain from future acts of reprisal;
3. Regular lighting to be provided in all group fitness classes the applicant attends;
4. The grab bar in the co-ed studio to be moved;
5. Signage to be installed identifying the accessible areas in studios and monitoring to ensure they are kept clear;
6. Monitoring to ensure that walkways in the club are kept clear;
7. Modification of the turnstile entry/exit system at the club to enable the applicant to enter and leave without assistance;
8. Installation of automatic door openers in various parts of the club;
9. Human rights training for all of the respondent’s staff, contractors and all club members;
10. The respondent to upload human rights information and a training module onto its Facebook page;
11. Posting of human rights cards in physical facilities and online;
12. Payment of $35,000 as compensation for injury to dignity, feelings and self-respect;
13. Reimbursement of membership fees from November 2012 to the present;
14. Reimbursement of costs related to the preparation of medical letters, and issuing of witness summons; and
15. Such other remedies as the Tribunal sees fit because the respondent withheld and misrepresented evidence and because respondent’s counsel was harsh in his cross-examination of her.

118The Code gives the Tribunal broad discretion in granting remedies, but for the Tribunal to grant a particular remedy, the remedy has to be grounded in a finding of an infringement of a Code right (see s.45.2 of the Code).

119In relation to items 1-3 above, I have not made any findings that would support granting any of these remedies.

120Regarding item 4, having found that the respondent ignored the applicant’s legitimate request to move the grab bar, it is appropriate to order that it do so now. The respondent is to install the grab bar at either end of the accessible area in the co-ed studio.

121In relation to item 5, the accessible areas are already marked with a universal access sign, and I have found that the respondent makes reasonable efforts to keep these areas clear, so this remedy will not be granted.

122Items 6-8 are unrelated to the allegations in this Application and appear to be related to the applicant’s view that the respondent does not comply with AODA. As these requested remedies are not grounded in findings of discrimination, they will not be granted.

123In relation to item 9, despite my finding that one of the applicant’s allegations is upheld, I do not consider that it is appropriate to order the respondent to conduct human rights training for all of its staff and contractors. It was not contested that the respondent has provided training to all of its staff. In presenting her case the applicant relied on the respondent’s own training materials that cover accessibility issues pertaining to both the Code and AODA. The participant training materials and facilitator’s notes that were in evidence indicate that on a corporate level the respondent takes its Code obligations seriously.

124This is also reflected in practice. The documents in this case show that the applicant dealt with numerous different staff over the course of this dispute. In my view the documents show that in general staff have a good understanding of their Code obligations and that they made reasonable efforts to accommodate her disabilities in a professional manner, notwithstanding the fact that at times she was a difficult person to deal with. When the applicant first raised her need for accommodation Paige Phillips tried to engage her in coming up with solutions together. Further, the memo Ms. Phillips sent to fitness instructors directed them to take a sensitive and open approach to accommodation requests, and it appears to have been effective in practice.

125However, in light of the finding I made in relation to the reasons underlying the respondent’s refusal to move the grab bar in this case, I think it is appropriate to order the respondent to ensure that David Wu take the online training module offered by the Ontario Human Rights Commission entitled Human Rights and The Duty to Accommodate.

126In relation to the request for human rights training for all club members and in relation to item 10, it is not appropriate to make such orders. The respondent’s Facebook page is an online public presence and however worthwhile the subject matter may be, the respondent is in the business of running fitness facilities, not providing public education on human rights. This is also why I will not order that all club members undergo training.

127In relation to item 11, I think it is appropriate to order the respondent to post Code cards in its physical facilities, as this makes clear to the many members passing through these facilities that the respondent respects the Code.

128In relation to item 13, I see no basis for ordering reimbursement of membership fees. The applicant used the respondent’s facilities throughout the course of this dispute, and as it intensified her use actually increased.

129Item 14 is a request for legal costs, as expenditures related to preparation for litigation are treated as legal costs. This request is denied because the Tribunal has no authority to award legal costs (see for example M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174). Similarly, item 15 is either a request that is akin to asking for an award of costs on a solicitor-client basis or it is a request for a remedy that is beyond the scope of the Tribunal’s authority under s.45.2 of the Code. In either case it is denied.

130Regarding item 12, the request for compensation for injury to dignity, feelings and self-respect, in determining what level of compensation to award the Tribunal typically relies on a number of factors that were set out in Sanford v. Koop, 2005 HRTO 53, including:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment.

131The respondent’s position is that the applicant’s request is out of all proportion to any harm she suffered. It argues that if the Tribunal finds its conduct to have been discriminatory, then the decision of the Tribunal in Rutledge v. Fitness One Peter, 2010 HRTO 2039, and the decision of the British Columbia Human Rights Tribunal (“BCHRT”) in Wollenberg v. North West Athletics, 2012 BCHRT 178, provide guidance as to an appropriate level of compensation.

132In Rutledge the applicant was awarded $2,500 where her membership in an athletic club was terminated and the Tribunal found discrimination on the basis of disability. In Wollenberg the BCHRT awarded $1,000 where the respondent athletic club refused to allow the applicant, who had a tendon disability, to wear a particular kind of supportive footwear in the club that would enable him to exercise.

133In Rutledge, at para. 13, the Tribunal reviewed decisions of the Tribunal up to that time and noted that awards for discrimination in the provision of services based on disability ranged from $300 to $12,500. Since Rutledge the Tribunal has awarded $15,000 in Austin v. Clayton Lakeside-Beaton, 2011 HRTO 31, and in Bourdeau v Kingston Bazaar 2012 HRTO 393. In Forrest v. The Looks Beauty Salon & Beauty Supplies, 2013 HRTO 1803, the Tribunal awarded $7,500.

134I note that these more recent cases all involve what amounts to a complete denial of service. By contrast in this case, the refusal of the respondent to move the grab bar did not have the effect of preventing the applicant from using its facilities. She continued to attend the club, including the co-ed studio. In that sense the effect of the discriminatory conduct is relatively minor.

135However, what is aggravating about the respondent’s refusal is its deliberate nature. The respondent knew of the applicant’s disability and the applicant had provided sound reasons why it should have been accommodated. While the respondent may have perceived her request to have been vexatious, viewed objectively it was not.

136The Tribunal has held that the actions of an applicant can have the effect of reducing the injury to dignity, feelings and self-respect (see: Abdallah v. Thames Valley District School Board, 2008 HRTO 230, and Donnelly v. Spinz Coin Laundries, 2009 HRTO 754 at paras. 118-119). As I have noted, as the dispute progressed the applicant was at times disrespectful to the respondent’s staff and made unreasonable demands, such as insisting that only a manager could accompany her to class to check on whether the accessible areas were clear. However, her request for the grab bar to be moved came earlier on in the process and – while her request might have been phrased differently – at that stage in the dispute there was no basis for the respondent to conclude that she was asking for it to be moved simply in order to annoy the club’s staff.

137The applicant has a right to accommodation, a right which is not conditional on her being polite. For many applicants obtaining accommodation is a struggle they deal with on a constant basis. In my view it is understandable that at this stage the applicant would express some frustration. I think that later on her conduct went beyond that, but at the time she made this request there was nothing about her conduct that would lead me to conclude that it should have an impact on the amount awarded to her.

138I find that the respondent’s deliberate refusal to consider her request for accommodation was humiliating and reinforced the applicant’s feeling that she has to fight to stop being marginalised. In the circumstances I think it is appropriate to order the respondent to pay the applicant $3,000 to compensate for injury to dignity, feelings and self-respect.

order

139The Application is granted in part.

140Within 30 days of the date of this Decision the respondent is ordered to:

• Move the grab bar in the co-ed studio to either edge of the designated accessible area;
• Ensure that David Wu has completed the online module offered by the Ontario Human Rights Commission entitled Human Rights and The Duty to Accommodate;
• Post Code cards in its physical facilities;
• Pay $3,000 to the applicant as compensation for injury to dignity, feelings and self-respect. Post-judgment interest in accordance with the Court of Justice Act, R.S.O. 1990, c. C.43, is payable on any of the above amount not paid to the applicant within 30 days of the date of this Decision.