HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emily Sweet
Applicant
-and-
1790907 Ontario Inc. o/a Kanda Sushi
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi
APPEARANCES
Emily Sweet, Applicant
Victoria Shen, Counsel
1790907 Ontario Inc. o/a Kanda Sushi, Respondent
Michael Ostroff, Representative
1This Application 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”). In particular, the applicant alleges that she was denied access to the respondent restaurant because she had a service dog with her.
2The Application was heard on January 12, 2015. I heard evidence from the applicant and her mother and from a server who was employed by the restaurant and who interacted with the applicant and her parents when they went to the respondent restaurant on February 19, 2014.
The applicant
3The applicant is a person diagnosed with Autism. The applicant's mother testified that the applicant has been treated for Autism by Dr. Alan Brown, a psychiatrist since 2007. According to a report from Dr. Brown the diagnosis is “high functioning Autism Spectrum Disorder i.e. Asperger’s Syndrome, Mood Disorder not otherwise specified and anxiety.”
4The applicant and her mother testified that in August 2011, Dr. Brown suggested that the applicant could benefit from a support dog. A letter from Dr. Brown dated October 29, 2014 confirms this. In October 2012, the applicant got Koby. Koby was initially acquired as a pet but the applicant realized that he had the potential to be a support dog. She took him to Pet Smart for basic training. She did not pursue the more advanced training that was available at Pet Smart because she decided to train Koby on her own. She did considerable research and successfully trained the dog. The applicant testified that Koby is trained to recognize when she is experiencing anxiety and interacts with her to help her reduce the anxiety and prevent a panic attack. He is capable of opening the refrigerator and retrieving a bag containing medication and water and bringing the bag to the applicant when he perceives that she may require medication to deal with anxiety.
5At the time, the applicant was attending high school and in September 2013, she started the process to obtain consent to bring Koby with her to school. Since Koby was trained by the applicant and not by a professional dog trainer, the School Board understandably required a testing process to ensure that it would be safe for Koby to accompany the applicant to school. Sandra Young was retained to develop a protocol to assess a “non-traditional service animal” and to determine the feasibility of a student attending school with such an animal. Ms. Young is a member of the Canadian Kennel Club and has experience in assessment under the Canadian Good Neighbour Test.
6Ms. Young developed the protocol and then tested the applicant and Koby. She reported:
The student and dog passed with ‘flying colours’. Everything the dog was asked to do was executed perfectly. The dog easily performed all tasks that would have generated a Certificate under the Canine Good Neighbour Test, as well as the more stringent testing over and above the CGN Test.
7On the basis of Ms. Young’s assessment, the School Board agreed to allow Koby to attend school with the applicant.
8The applicant and her mother testified that Koby has had a very positive effect on the applicant. She previously was unable to attend school about half of the time. After Koby started to go with her, she has attended every day. The applicant has now graduated from high school, is attending College and living in residence with Koby. The applicant testified that Koby is beneficial not only in helping her deal with anxiety but also in social circumstances as the dog provides a social buffer and an “ice breaker” when meeting people.
9On February 19, 2014, the CTV television station did a news story on the applicant and the School Board’s decision to allow Koby to accompany her to school. The story was very positive about the applicant and Koby and also about the School Board and the protocol that had been developed. The School Board Superintendent attended the school on that day and also spoke very positively about the process.
10The applicant testified that she was very proud of her accomplishment. She was of course pleased that her hard work in training Koby had been successful but she was also excited about being involved in a process that would allow other people with a disability to also benefit from a service animal. Her parents were naturally very proud of their daughter and wanted to take her out to lunch to celebrate after the story was filmed at the school.
11The three of them went to the respondent restaurant. The applicant had visited the restaurant a few times in the past without Koby and she identified it as the place she wanted to go to celebrate.
12This background is important in terms of understanding and assessing the applicant’s disappointment and hurt when she was denied access to the restaurant.
The respondent
13The respondent is a small sushi restaurant. The respondent was represented at the hearing by Mr. Ostroff, a paralegal. Mr. Ostroff advised that the respondent restaurant is owned by Mr. Chen. Mr. Chen did not attend the hearing.
14Mr. Ostroff was accompanied by Mr. Wang Xin, who was identified as a cook employed at the restaurant. Mr. Ostroff indicated that Mr. Xin was his advisor and had been sent by Mr. Chen, the owner of the restaurant with authority to instruct Mr. Ostroff. Mr. Ostroff advised that Mr. Xin has very limited English. A translator was present and she provided simultaneous translation for Mr. Xin. Mr. Xin was not called as a witness.
15Mr. Ostroff advised that the server who had interacted with the applicant and her parents was still employed at the restaurant and could be called to testify on behalf of the respondent.
16The server was called as a witness. He testified that he is not currently employed by the respondent. His circumstances are discussed in more detail below.
The applicant’s evidence about the events on February 19, 2014
17The applicant and her mother testified that when they arrived at the restaurant, the server pointed to Koby and said that they could not stay at the restaurant with the dog. They testified that they informed the server that Koby was a service dog and that the restaurant was legally required to allow him to be with the applicant at the restaurant. They testified that a couple who were waiting to be seated intervened and told the server that he was required to allow the dog to come with the applicant.
18The applicant and her mother testified that at that time they were not entirely clear about the legal authority concerning service animals. They had an idea that a service provider could be fined up to $1,000 for refusing access to a person with a service animal. They advised the server of this. The server went to the back of the restaurant a few times, apparently to discuss the situation. Each time he returned, he appeared to be more agitated and angry. He eventually put on his coat and left the restaurant.
19The applicant and her parents were still hopeful that the situation could be resolved. They thought that some authority might be able to intervene. They called the police who advised that they could not intervene. The police suggested they call the municipality but they were advised that the municipality could also not intervene and referred them to the Human Rights Legal Support Centre. The Support Centre said they did not have resources to intervene in the immediate situation, but told them how to file an Application.
20After calling these places and getting no assistance, they left the restaurant. They returned to the car and the applicant began to experience severe anxiety. Her mother was concerned that she was on the verge of a panic attack and gave her some medication. The applicant was able to avoid a panic attack but she felt very deflated and upset. The day which had started with a celebration of a significant triumph with national television coverage was ruined. The applicant’s mother testified that it was like a balloon had been popped. The family went to a Swiss Chalet restaurant knowing that they would be accommodated. However, the celebratory mood was gone.
21The applicant testified that there have been continuing effects of the events on February 19, 2014. She has not returned to the restaurant which was a favourite place to go and is near her home. She felt unable to attend a friend’s birthday celebration that was held at the restaurant. She has a continuing fear that she will be denied access by other service providers and will call ahead to make sure that there will not be a problem.
The server’s evidence
22The server testified that he is 29 years of age and came to Canada from China when he was 8 years old. The server communicated well in English but was not entirely fluent. Based on my observations of the server while he testified, there is a good chance that there was a language barrier or communication issues during the events in question.
23The server testified that he has worked in the restaurant industry for over six years, including work at large restaurants that are part of a chain. He testified that he has never encountered a situation where a person wanted to bring a dog into a restaurant. He testified that he is aware that blind people may use a guide dog and he thought that a guide dog would be permitted to enter a restaurant. It was obvious, however, that the applicant was not blind.
24The server testified that the dog was not wearing a vest or anything else that identified him as a service animal. However, in the server’s witness statement, it indicated that the dog was wearing a vest. I further note that in the CTV news clip, Koby was wearing a vest with the words “service animal” and he was wearing the same vest at the hearing. Since the applicant and her parents went directly from school after the news clip story to the restaurant, I find that it is more probable than not that Koby was wearing the vest.
25The server testified that he did not know what to do when the applicant and her parents entered the restaurant with a dog. Mr. Chen, the owner and his boss was not at the restaurant. He tried to call Mr. Chen by phone, but Mr. Chen did not pick up.
26The server testified that the applicant and her parents told him that he would be fined $1,000 if he did not allow them to come in. He went to the kitchen area to ask the staff there about the situation. They all told him that animals are not permitted to come into a restaurant, although people did mention that a blind person with a guide dog might be permitted.
27The server testified that he was quite upset when he heard that he could be fined $1,000. He indicated that his pay was only $2,000 a month and he has significant family obligations. He testified that he became more upset when “they called the cops” as he was then worried about having to interact with the police.
28The server was also the delivery person for the restaurant. There was a delivery ready and he left the restaurant to make the delivery. When he returned, the applicant and her parents had left. The parties agree that the applicant and her parents were at the restaurant for about 15 to 20 minutes.
29The applicant filed the Application about four days after the events in question. The Application indicates that the applicant was seeking $15,000 in compensation for injury to dignity, feelings, and self-respect. The server testified that he learned from Mr. Chen that the fine was now $15,000. He testified that he was very upset that his employer could now be fined $15,000. He testified that he had trouble sleeping and that he then developed a serious skin condition which meant that he could not continue to work as a server. As a result, his employment ended.
30The server testified that he values customer service. He indicated that he has some skill in this area and that he has often been called upon to help resolve problems. He suggested that in this case, he might have been able to find a solution but he was too upset by the information that he could be fined $1,000 and that the police had been called, and also by his inability to reach Mr. Chen. He testified that in subsequent discussions, Mr. Chen appeared to believe that some solution to the problem could have been developed.
Submissions
31On behalf of the applicant, counsel for the applicant, Ms. Shen, submitted that it is clear that the applicant is a person with a disability and that Koby is a service animal. Ms. Shen submits that if it is not apparent to a service provider that an animal is a service animal, the service provider is required to enquire. A service provider can ask for documentation and if that request had been made in this case, the applicant would have provided medical documentation in the form of notes from her treating psychiatrist.
32Ms. Shen submits that the statements that were made about a possible $1,000 fine were not made to threaten the server but to inform him, although Ms. Shen agrees that the basis for the idea of a $1,000 fine is not clear.
33Ms. Shen notes that the Tribunal has awarded monetary compensation in similar cases and that there is a significant range of the amounts awarded. She submits that the compensation in this case should be at the higher end because of what happened and because of the effect on the applicant which was amplified because what should have been a celebration turned into such a deflating experience.
34Ms. Shen submits that the Tribunal should order the respondent to undergo significant training to ensure that all the staff are aware of the Code and the obligations of service providers under the Code.
35On behalf of the respondent, Mr. Ostroff submits that the applicant has not proved that she is a person with a disability under the Code. In his view, the medical information provided by the applicant that states that she does have a disability is only “an opinion”. Despite this submission, Mr. Ostroff did not challenge the evidence of the applicant or her mother with respect to their testimony about the applicant's disability.
36Mr. Ostroff submits that Koby is not a service animal. In his view, even if Koby was wearing a vest that identified him as a service animal, this does not establish that he is in fact a service animal. Mr. Ostroff notes that the Blind Persons’ Rights Act, R.S.O. 1990, c. B7 and the Regulations to that Act establish a system for certifying that guide dogs are properly trained and for identifying guide dogs. He notes that the Accessibility for Ontarians with Disabilities Act, (AODA) and the Regulations to that Act do not establish a similar system for support animals.
37Mr. Ostroff notes that there is an organization that provides “intense” training for support dogs and that is specifically designed to train service animals for people with autism. He notes that Koby has not gone to that program and submits that Koby is therefore not a service animal.
38Mr. Ostroff submits that the events on February 19, 2014 occurred because the applicant and her parents were intent on harassing and threatening the server.
39Mr. Ostroff notes that the server testified that he was unaware that there is any such thing as a service animal or that there is any situation where a person who is not blind could be allowed to come into a restaurant. He submits that it follows that the server did not have any intention to discriminate. He suggests that this should be a sufficient basis to dismiss the Application, or in the alternative, that no monetary compensation should be awarded.
40Mr. Ostroff suggests that to the extent the applicant experienced any discrimination, the fault lies with the Government of Ontario which has failed to sufficiently educate service providers with information about the AODA and the fact that service animals are now recognized. He submits that the Tribunal should order the government to pass a “Support Animal Act” to clarify the situation. In his view, the government passed a law that imposes obligations on service providers but then kept it a secret.
41Mr. Ostroff submits that the Tribunal has inappropriately gradually increased the levels of monetary compensation awarded to applicants. He believes that this has generated many meritless Applications from applicants who are just trying to get money. Mr. Ostroff said that in this case, if any monetary compensation was awarded it should be minimal and should be paid to a charity and not to the applicant.
The applicable law
42Section 1 of the Code provides as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
43“Disability” is defined in section 10 of the Code and the definition is very broad:
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
44The Tribunal has consistently accepted that autism spectrum disorder is a “disability” within the meaning of section 10 of the Code: see, for example, Arzem v. Ontario (Community and Social Services), 2005 HRTO 11. On the basis of the testimony of the applicant and her mother, which I accept, and the medical reports from Dr. Brown, I am satisfied that the applicant is a person with a disability within the meaning of the definition of “disability” in the Code.
45The Accessibility for Ontarians with Disabilities Act 2005, SO 2005, c 11 (AODA) does not itself say anything about “service animals”. However, section 4 of O. Reg. 429/07 “Accessibility Standards For Customer Service” does deal with “service animals” and the relevant subsections provide as follows:
- (1) This section applies if goods or services are provided to members of the public or other third parties at premises owned or operated by the provider of the goods or services and if the public or third parties have access to the premises
(2) If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.
(3) If a service animal is excluded by law from the premises, the provider of goods or services shall ensure that other measures are available to enable the person with a disability to obtain, use or benefit from the provider’s goods or services.
(8) In this section,
“guide dog” means a guide dog as defined in section 1 of the Blind Persons’ Rights Act;
“service animal” means an animal described in subsection (9);
(9) For the purposes of this section, an animal is a service animal for a person with a disability,
(a) if it is readily apparent that the animal is used by the person for reasons relating to his or her disability; or
(b) if the person provides a letter from a physician or nurse confirming that the person requires the animal for reasons relating to the disability.
46With respect to section 4(2), there are of course laws that are applicable to restaurants and other food service places. Section 59 of the Health Protection and Promotion Act, R.R.O. 1990, Reg. 562, provides in part:
- Every operator of a food premise shall ensure that in respect of the food premise,
(e) every room where food is manufactured, prepared, processed, handled, served, displayed, stored, sold or offered for sale is kept free from,
(ii) subject to section 60, live birds and animals;
47The fact that animals are generally not permitted in restaurants is something that restaurants and employees of restaurants are generally familiar with. It is a reason why most restaurants have a sign on the door stating “no animals allowed”. Most such signs make an exception for guide dogs and, increasingly for service animals.
48However, this Regulation creates an exception to the general rule that animals are not permitted in restaurants.
49Section 60 of the Regulation provides:
- (1) Subclause 59(e)(ii) does not apply to,
(a) a service dog serving as a guide for a blind person or for a person with another medical disability who requires the use of a service dog, if the service dog is in an area of the food premise where food is served, sold or offered for sale;
(2) A dog other than a guide dog for the blind is a service dog for the purposes of clause (1) (a) if,
(a) it is readily apparent to an average person that the dog functions as a service dog for a person with a medical disability; or
(b) the person who requires the dog can provide on request a letter from a physician or nurse confirming that the person requires a service dog.
50This provision is different from the Regulation to the AODA concerning service animals. One important difference is that under the Regulation to the Health Protection and Promotion Act, only service dogs and guide dogs are recognized as exceptions to the general rule that animals are not permitted in restaurants, as compared to the broader reference to a “guide dog or other service animal” in the AODA Regulation. In this case, this difference does not matter as Koby is a dog.
51The test for determining whether a dog is a service dog is also not identical under the two Regulations.. Under the AODA Regulation an animal is a “service animal”:
4(9)(a) if it is readily apparent that the animal is used by the person for reasons relating to his or her disability; or
(b) if the person provides a letter from a physician or nurse confirming that the person requires the animal for reasons relating to the disability.
52Under the Health Protection Regulation, a dog is a “service dog” if:
(a) it is readily apparent to an average person that the dog functions as a service dog for a person with a medical disability; or
(b) the person who requires the dog can provide on request a letter from a physician or nurse confirming that the person requires a service dog.
53Under section 4(9)(b) of the AODA Regulation an animal is a service animal if the person “provides a letter from a physician or nurse confirming that the person requires the animal for reasons relating to the disability.”
54In this case, although the applicant did have a letter from her treating physician confirming that she requires Koby for her disability, she did not produce the letter.
55However, under the Health Protection Regulation, it is not necessary to produce a letter. Under that Regulation, a dog is a service dog if the person “can provide on request a letter from a physician or nurse confirming that the person requires a service dog.”
56The applicant had such a letter and could have provided it on request so at least under the Health Protection Regulation, Koby was a service dog.
Did the applicant experience discrimination?
57Mr. Ostroff submits that because the server was not aware of the applicant’s rights, he could not have discriminated against the applicant because there was no “mens rea”. Mr. Ostroff apparently came to this conclusion based on criminal law principles which are not applicable in proceedings under the Code. It is a well-established general principle that ignorance of the law is not a defence. In human rights law it is well-established that a determination of whether discrimination occurred rests on the effect on the person and not on whether there was an intention to discriminate.
58At the same time, I do agree that confusion about the status of service animals is an issue. While it is clear that people other than blind people may benefit medically from animals, this may not be widely understood. It similarly may not be widely understood that this has been codified in legislation and that in certain circumstances people are legally entitled to be accompanied by a service animal, or, in the case of restaurants, a service dog.
59In the present case, I note that even the applicant and her parents were not well versed about the law. They had a general understanding that Koby was legally allowed to be with the applicant at the restaurant, but were not clear about the specifics of the law. They made up the information that there could be a $1,000 fine. I have no evidence about whether the owner of the restaurant had any knowledge about the issue of service animals as he did not attend the hearing.
60I find that there were a number of factors that contributed to the events at the restaurant on February 19, 2014. The server’s lack of knowledge with respect to service dogs was certainly a factor. The fact that he did not know what to do and the fact that he was unable to contact the owner of the restaurant were also important factors. At the same time, while he was unaware of service animals, he was aware that for health and safety reasons, animals are generally not permitted in restaurants. I also accept that the server became flustered and agitated. I accept that his interpretation of the events was that he could personally be fined $1,000 and that he might have involvement with the police. It is certainly possible that things might have unfolded differently if the server had not become agitated. However, I do not accept Mr. Ostroff’s submission that the applicant was denied access to the restaurant because the applicant and her parents were intent on harassing the server.
61For the reasons discussed above, Koby is a “service dog” as defined by the Health Promotion Regulation and the applicant is a person with a disability under the Code who requires Koby because of her disability. It is not disputed that the applicant was denied service at the restaurant because she had Koby with her. She was therefore discriminated against because of her disability, contrary to section 1 of the Code.
62At the same time, it is important to be clear that the respondent in this case is the restaurant and not the server. The responsibility for ensuring that servers are properly trained and aware of the obligations of a service provider rests with the employer and not the employee. Any liability for discrimination done by an employee in the course of the employee’s employment that results in a breach of the Code is that of the employer. This too is a well-established legal principle and is set out in section 46.3 of the Code. It is therefore perplexing that Mr. Ostroff (with no supporting authority) submits that the restaurant has no liability for the actions of its employees.
63While the restaurant is liable for what happened, it is of note that based on the evidence I heard at the hearing, it seems that the server is the person who has been most affected by the events at the restaurant. He testified that he experienced significant anxiety during the event itself, based on information from the applicant and her family that he might be fined $1,000. When his employer received the Application a few days later the server was worried that his employer might have to pay $15,000. He testified that he developed lasting anxiety that affected his ability to sleep, developed a medical condition as a result, and eventually lost his employment.
Remedy
64The Tribunal’s authority to remedy discrimination is set out in section 45.2 of the Code:
45.2 (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:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
65The applicant seeks damages for injury to dignity, feelings, and self-respect and an order to promote future compliance with the Code.
66The principles underlying an award for compensation for injury to dignity, feelings, and self-respect were discussed in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paragraphs 45 – 51:
Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects. As noted by the Supreme Court of Canada in considering damages for breaches of the Canadian Charter of Rights and Freedoms in Vancouver (City) v. Ward, 2010 SCC 27 at para. 27:
Compensation focuses on the claimant’s personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant’s intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.
Code damages are meant to compensate, not punish, and Code violations, unlike some other areas of law, arise in a variety of very different social and legal contexts.
Damages for Code violations, as in other areas of law, must be fair to both the applicant and respondent(s), given the violations of the Code found: see Ward, supra, at para. 53. Damages under the Code must not be so low as to trivialize the social importance of the Code by effectively creating a license fee to discriminate (see Lane, supra at para. 152). At the same time, Code damages for intangible losses should not be “unduly high”: see Ward, supra at para. 54, referring to the approach of courts in other jurisdictions to damages for violations of constitutional rights.
Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given facts is predictable and principled.
67In this case, the immediate result of the discrimination was that the applicant was not permitted to have lunch with her parents at the respondent restaurant. There was an emotional hurt to this that was significantly compounded by the fact that the lunch was to be a celebration of a huge success relating to recognition of her work in training Koby and in opening the door to other people with a disability who may benefit from having a service animal. To then experience discrimination with respect to these exact issues was especially hurtful.
68It is not clear how long the acute reaction to the events lasted. The applicant testified that she watched the CTV news segment that evening but still felt down about the events at the restaurant. She did not lose time from school and there is no indication that she required any medical intervention apart from needing medication immediately following the events.
69The applicant indicated that she has a continuing anxiety that the same thing could happen again. She said that she now phones ahead to make sure that Koby will not be an issue if she is not sure how he will be received. I would say that this is a good idea and is consistent with the human rights principles around accommodation which require all the parties to work together to find the appropriate solution.
70The use of support animals for people with disabilities other than blindness is a relatively new concept. As Mr. Ostroff correctly notes, there has not been very much publicity or social dialogue about this issue. Mr. Ostroff may be correct that government legislation or a public awareness campaign would be useful. However, these are not remedies that could be ordered in this case, not least because the Tribunal can only make an order with respect to a party to an Application. In this case, the only parties are the applicant and the respondent restaurant.
71The Tribunal has considered a number of cases involving service animals. As the cases make clear, the results in each case depend on the facts in the particular case. As noted in Allarie v. Rouble 2010 HRTO 61, at paragraph 37, “context is critically important in human rights cases”. In that case, a person with a service animal was not permitted to come to a store but the Vice-chair found that the person was asked to leave because of reasons other than the service animal.
72In Robdrup v. Werner Property Management, the applicant was awarded $200. In that case the applicant’s tenancy in an apartment was terminated and he alleged that it was because he had a service dog. The Vice-chair concluded that the termination of the tenancy was not related to the service dog but found that the tenant had been discriminated against during the tenancy because of the service dog but also found that the applicant’s own behaviour contributed to what happened.
73In Hill v. Bani-Ahmad, 2014 HRTO 937 the applicant was a blind person who was denied entry to a restaurant because he had his guide dog. The respondent in that case expressed remorse for what had happened. The server who refused entrance was found to have been polite and there were no other factors that contributed to the events. The applicant in that case was awarded $5,000.
74In Bourdeau v. Kingston Bazar 2012 HRTO 393, the respondent did not respond to the Application. As a result, the applicant’s allegations were deemed to be accepted by the respondent. The applicant in that case was a blind person who was denied entrance to a grocery store because he had a guide dog. The Vice-chair accepted that the person who denied entry was “abusive” and that the applicant was “understandably extremely upset”. The applicant in that case was awarded $15,000 and this is the amount the applicant in the instant case claimed in her Application.
75As discussed in Arunachalam, above, cases with equivalent facts should lead to an equivalent range of compensation with recognition of the unique circumstances of each case and of the fact that some forms of discrimination are objectively more serious than others. An award of $15,000 for injury to dignity, feelings, and self-respect is well within the range of compensation awarded by this Tribunal (excluding loss of wages) when a person loses their employment for discriminatory reasons, although of course the amount in particular cases may vary widely from this amount based on the particular circumstances.
76Without in any way diminishing the applicant’s experience on February 19, 2015, objectively speaking, a one-time denial of access to a restaurant does not, in my view, compare with the loss of a job.
77It also seems to me that there may be some difference between the denial of access to a restaurant because of a service dog as compared to a guide dog. The fact that a blind person may be accompanied by a guide dog is well known and accepted. It is also known and generally accepted that a blind person is entitled to service at a restaurant because guide dogs are known to be an exception to the general rule that animals are not allowed in restaurants. Given this, denial of service at a restaurant to a blind person because of a guide dog would be relatively unexpected. All other things being equal, the unexpected denial of service could result in significant injury to dignity, feelings, and self-respect.
78A person with a disability other than blindness who requires a service dog is also legally entitled to service at a restaurant. However, this legal right is not as well-known and accepted. As the applicant in this case has learned, it is prudent to understand this and to be prepared for it. For example, it is important to carry a letter confirming the medical need for the service dog and to offer it to the service provider.
79The actual context of this case from the applicant’s perspective is particularly compelling because the encounter at the restaurant had such a deflating effect after the triumph of having Koby welcomed at school and the news coverage that this generated.
80The context in this case also obviously also includes the interaction between the applicant and the family and the server. While the applicant and her family may have mentioned the idea of a $1,000 fine for information purposes, it was understandably not received in that way by the server. Moreover, there was no factual basis to this supposed fine. While I understand why the applicant and her family thought of calling the police to see if some mediation might be provided, the effect on the server was to escalate his level of anxiety about what was happening which may have contributed to his inability to better utilize his customer service skills.
81Again, while I appreciate why these things happened in the moment, I also appreciate the applicant's acknowledgement at the hearing that she would now handle the situation differently.
82In consideration of all of these factors, I conclude that an award of monetary compensation for injury to dignity, feelings, and self-respect in the amount of $2,500 is appropriate in this case.
83I also conclude that an order to promote future compliance with the Code is appropriate. This is primarily because, for the reasons explained above, there is no evidence before me to indicate that the respondent understands its obligations under the Code in respect of patrons with a disability.
84The respondent is directed to retain at its cost an expert in human rights to develop a human rights policy. The policy shall in particular set out the Code obligations for dealing with customers with a disability and procedures for what to do if a customer comes to the restaurant with an animal. This policy shall be in English and translated into other languages as necessary to ensure that it is understood by the staff of the restaurant. This policy shall be developed and implemented no later than September 30, 2015. A copy of the policy shall be sent to the applicant’s representative when it is complete.
ORDER
85The respondent shall pay the applicant $2,500 as compensation for injury to dignity, feelings, and self-respect. This payment shall be mailed to the applicant no later than April 17, 2015. Post judgment Interest in accordance with the Courts of Justice Act payable at the rate of 3% on any amount not paid by that date.
86The respondent is directed to retain at its cost an expert in human rights to develop a human rights policy. The policy shall in particular set out the Code obligations for dealing with customers with a disability and procedures for what to do if a customer comes to the restaurant with an animal. This policy shall be in English and translated into other languages as necessary to ensure that it is understood by the staff of the restaurant. This policy shall be developed and implemented no later than September 30, 2015. A copy of the policy shall be sent to the applicant’s representative when it is complete.
Dated at Toronto, this 1st day of April, 2015.
“signed by”
Brian Cook
Vice-chair