Stanley Taylor v. The Corporation of the City of St. Thomas, 2015 HRTO 671

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanley Taylor Applicant

-and-

The Corporation of the City of St. Thomas Respondent

DECISION

Adjudicator: Dawn J. Kershaw Date: May 22, 2015 Citation: 2015 HRTO 671 Indexed as: Taylor v. St. Thomas (City)

APPEARANCES

Stanley Taylor, Applicant Leslie McClure, Representative

The Corporation of the City of St. Thomas, Respondent John Sanders, Counsel

Introduction

1This is an Application filed under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent contravened the terms of the settlement reached between the parties.

2On November 22, 2013, the parties entered into Minutes of Settlement (“MOS”) that settled an Application in which the applicant had made several complaints about the respondent’s parallel transit system. The applicant alleges the respondent has breached the terms of the MOS, as set out below.

3The parties attended an in-person hearing and made submissions. The applicant was absent because he was in hospital, but his representative, who is the applicant’s daughter and also a parallel transit system user, advised that the applicant wished the hearing to proceed in his absence.

background

4The applicant alleges the respondent breached the following terms of the MOS:

1. [it would] investigate with the Corporation’s [respondent’s] transit service provider the provision of a human/1st person phone line to respond to calls relating to the transit service during all normal operating hours of the transit service and further, the Corporation will report back to Mr. Taylor [the applicant] the results of that investigation.

2. The Corporation will review its existing communication policies to persons with disabilities and it will implement improvements as deemed appropriate.

3. The Corporation will table with City Council a report which makes recommendations relating to compliance with provincial legislation under the Ontarians with Disabilities Act [sic - properly the “Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 and hereinafter referred to as “the AODA”] relating to transit relative to the requirements of the Act to be compliant by January 1, 2014. The Corporation will inform, in writing, persons registered with the City on its current parallel transit system about the pending legislation’s requirements and the Corporation’s recommendations to City Council.

4. The Corporation will undertake a service analysis of its parallel transit service relative to the new regulations being in place. This analysis will be completed by June 30, 2014 and recommendations will then be made to City Council [hereinafter “council”].

the law

5Subsection 45.9(3) of the Code states:

If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8).

submissions

Investigate Provision of Human Telephone Line During Business Hours

6The applicant submits the respondent agreed during transit’s normal operating hours to have a live person answer the telephone for those who called to book parallel transit services. He does not deny the respondent ensured there was a person who answered the telephone during normal operating hours, but argues he was the only one who would have known this was available because the respondent posted it only on its website, and not everyone has access to the Internet. The applicant argues this gave him an unfair advantage.

7The applicant’s representative also submits that there was no one on duty on New Year’s Eve, so she would not have been able to change a New Year’s reservation had she wanted to do so.

8The respondent counters it was able to act promptly to have a live person taking bookings for its parallel transit service provider during normal business hours, and in fact the service was available by November 26, 2013. The respondent also reported back to the applicant on December 4, 2013, as required by the MOS.

9The respondent further submits that although strictly speaking it may go beyond the MOS, the respondent understands that the applicant’s argument is that what good is it to provide a service if people are not aware of that service. The respondent submits that in addition to the information being on the website, the parallel transit provider’s telephone message also told people of the service.

10The respondent further submits with respect to New Year’s Eve availability, a person was available to answer the phone during all normal operating hours, and it fully complied with the MOS. The respondent states it is a good suggestion to expand the service beyond normal operating hours at times, but it is beyond the scope of the MOS.

11I find no contravention of paragraph 1 of the MOS. First, I note that although the applicant’s representative is a parallel transit system user (hereinafter “system user”) and made some submissions with respect to her own experiences with the system, including her experience on New Year’s Eve and her observations with respect to a lack of seating and signage on parallel transit buses when used on the conventional system, she is not a party to the MOS. While her submissions were taken seriously by the respondent, and the respondent advised at the hearing it was going to consider her submissions, I reiterate, as I did at the hearing, that the applicant’s representative is not a party to the MOS and I am limited to deciding whether there was a contravention of those MOS.

12With respect to an alleged contravention of the first paragraph of the MOS, the evidence establishes that not only did the respondent investigate and report back to the applicant, but it began providing the service four days after the MOS were signed.

Review existing communication policies to persons with disabilities and implement improvements as deemed appropriate

13The applicant submits nothing changed with respect to how the respondent communicates with persons with disabilities since the MOS were signed.

14The applicant submits the respondent generally does not put information in its parallel transit vehicles to inform people of services and transit system open houses, for example.

15The applicant submits he checked with several nursing homes who do parallel transit bookings for their residents and the respondent is not sending its information to their staff, but instead is sending it only to the individuals who use the parallel transit system. The applicant submits this is not sufficient because some individuals are not capable of understanding the information, and the staff at the nursing homes does not have the information.

16The applicant’s representative argues no one knew about the availability of parallel transit services on New Year’s Eve because the information was not posted in the parallel transit service vehicles.

17In addition, the applicant’s representative submits the respondent’s mailing last spring to those using the parallel transit system said a person must cancel a booking as soon as possible, but the website states one must cancel a booking within 12 hours of the booking, which is contradictory.

18In the applicant’s view, communication has worsened since the MOS were signed. The applicant’s representative gave the example of seeing a support person pay a fare even though a support person is not required to do so, which in the view of the applicant’s representative means that the respondent has not communicated the policy properly to users of the parallel transit system.

19The respondent argues it conducted a review of its existing communication policies and practices, and included comments received during the Accessible Transportation Open Houses held in September and October, 2013. It pointed to changes that were made, which were approved by the respondent at a December 16, 2013 council meeting.

20The respondent submits generally it has found that increasingly people use the Internet as their source of information and that even if the system users are not conversant with the technology, their family members or care providers are and that is where they look for information. The website is improving constantly and the respondent hopes it has improved communication for all system users.

21The respondent argues it complied with paragraph 2 of the MOS because it conducted a review of its policies and made recommendations to council that approved those recommendations.

22I agree with the respondent that it has complied with paragraph 2 of the MOS that required it to review its communication policies and to make improvements as deemed appropriate. While the applicant may disagree the changes have improved communication, the respondent complied with the MOS by investigating and making improvements as deemed appropriate.

Report re transit recommendations with respect to the January 1, 2014 compliance with the AODA, and providing information in writing to system users

23The applicant submits the respondent has not complied with paragraph 3 of the MOS because it has not complied with several of the requirements of the AODA by January 1, 2014.

24The applicant’s representative submits the respondent has not provided courtesy seating and signage on parallel transit system buses that are used at times on the conventional transit system. She further submits the respondent has not ensured that bus lights illuminate the ground around the exit door as required; there is no audible alarm for the ramp on vehicles on the parallel transit system; and the conventional buses do not have all the required grab bars.

25The respondent argues paragraph 3 of the MOS necessitated that the respondent table a report that made transit recommendations relating to the January 1, 2014 compliance with the AODA. The respondent submits the December 5, 2013 report, attached to the Response, was tabled at a December 16, 2013 council meeting. The respondent stated that council approved the respondent’s recommendations at that meeting.

26The respondent then posted on its website a summary of the recommendations, the requirements of the AODA and the steps the respondent was taking to comply with the AODA. In addition, the respondent sent to registered users of the parallel transit system a June 18, 2014 letter that included a page entitled “Accessibility Compliance Notification”, which stated the respondent largely was compliant with the AODA before, but also provided a list of areas in which it confirmed it was compliant by January 1, 2014. This page also included a note that a full copy of the report could be obtained by contacting the Environmental Services Department. It also provided an Internet link for the report.

27The respondent’s representative submits it is compliant with the requirements of the paragraph 3 of the MOS, but also is compliant with the requirements of the AODA. It submits that a debate on whether or not the respondent is compliant with the AODA requirements is beyond the scope of the hearing.

28I agree with the respondent that it has not breached paragraph 3 of the MOS. It was to table a report making recommendations on AODA compliance by January 1, 2014, which it did. It further was to advise system users of the pending AODA requirements and its recommendations to council, which it did on its website and in its June 18, 2014 letter sent to registered system users.

Service analysis of parallel transit service by June 30, 2014 and recommendations to council

29The applicant’s representative submits she is not certain if this was done as she could not find out by reviewing the website.

30The respondent submits it is not clear what was required in paragraph 4 of the MOS. There was confusion on its part with respect to whether this was the analysis that was included in the December 5, 2013 report or whether it meant the information that was included in a December 15, 2014 report to council, which fully analyzed the parallel transit system and included comments received from open houses in 2014. Dave White, supervisor of transportation for the respondent, reports that the same type of analysis was done in both the December 5, 2013 and the December 15, 2014 reports.

31The respondent further submits that if the intent of paragraph 4 of the MOS was to analyze the system after the implementation of the recommendations made in the December 5, 2013 report, this was done in December, 2014 and it would have been premature to do it in June, 2014.

32I note this Application was filed before the June 30, 2014 deadline. In addition, it is important to note the MOS were signed in November, 2013. On December 5, 2013, the respondent provided to council a report that contained the same type of analysis that was ultimately done in the December, 2014 report.

33It was not clear from the MOS what was intended by paragraph 4. Given the lack of information about any potential breach of this paragraph from the applicant’s representative and without any input from the applicant, I cannot find there has been a breach. The applicant bears the burden of establishing that there was a breach of the MOS. Had the applicant called sufficient evidence, then I could have established the meaning and intent of paragraph 4 and decided if there was a breach. Unfortunately in these circumstances I was not able to do so, and the applicant has not satisfied the burden of establishing there was a breach.

order

34The Application is dismissed.