Bain v. River Poker Tour, 2015 HRTO 734

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jamie Bain

Applicant

-and-

River Poker Tour and Daniel Poirier

Respondents

DECISION

Adjudicator: Dawn J. Kershaw
Date: June 4, 2015
Citation: 2015 HRTO 734
Indexed as: Bain v. River Poker Tour

APPEARANCES

Jamie Bain, Applicant
Self-represented

River Poker Tour and Daniel Poirier, Respondents
Chris Chappel, Representative

Introduction

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”).

2The applicant alleges that the respondents discriminated against him by scheduling a poker tournament in the basement of an Ingersoll restaurant (“the Ingersoll restaurant”) that was inaccessible to him in his wheelchair.

3The respondents counter that they offered to carry the applicant down the stairs, and that the applicant had been carried upstairs to another poker tournament in the past.

Facts

4The salient facts largely were not in dispute. Both the applicant and his mother testified, as did Mr. Poirier and Mr. Chappell.

5The respondent, River Poker Tour (“River Poker”), is a “free to play” poker league which is owned by the partnership of Christopher Chappell and the respondent, Daniel Poirier. Various venues, such as restaurants and pubs, pay the owners to hold games at their venues.

6After a three month season in which a player accumulates points, a player may qualify for the tournament at which they play for prizes.

7The applicant has always used a wheelchair. He has been a regular player in the poker league since approximately 2012. He testified that the basement of the Ingersoll restaurant is inaccessible to him.

8The applicant testified that during the regular season, it did not matter that some games were played at the Ingersoll restaurant because it was inaccessible to him, and he could accumulate points at other venues and did not need to attend the games there. However, he accumulated enough points to be in the prize tournament, scheduled to be held in the Ingersoll restaurant. Mr. Chappell testified it was scheduled for April 5, and the applicant’s mother testified it was scheduled for April 12, although little turns on the difference.

9The applicant’s mother testified she believes she first learned of the tournament’s location before Christmas 2013. The parties gave conflicting evidence about when the applicant or his mother first spoke to Mr. Poirier or Mr. Chappell about the inaccessibility of the tournament venue. The applicant’s mother gave evidence that she spoke to Mr. Poirier two or three times and she believed the first time was in February or the beginning of March, 2014. There was no dispute among the parties that the applicant’s mother spoke to Mr. Poirier, although Mr. Poirier believed it was in March, 2014.

10The applicant’s mother also testified that in the course of the conversation, Mr. Poirier suggested they could carry the applicant down the stairs, and she told Mr. Poirier the applicant would not want that. Mr. Poirier testified he believes he asked the applicant’s mother why not because the applicant had been carried upstairs in another location. He testified he did not get any answer. Mr. Poirier agreed that the applicant’s mother asked why they did not pick another venue. He also testified that in response to the applicant’s mother’s advising him the applicant did not want to be carried, he told her he would speak to Mr. Chappell about her concerns.

11Mr. Poirier testified the games and tournaments generate income for the venues they use, which are used in rotation. The venues in London and Woodstock had already had a tournament and it was the turn of the Ingersoll restaurant.

12Mr. Poirier testified the contract with the Ingersoll restaurant did not allow them to use a table for the applicant on the main floor as they had done at other venues, and it was for the banquet hall on the lower floor only.

13Mr. Chappell and the applicant agreed that the applicant spoke to Mr. Chappell in mid-March about the venue’s accessibility. Mr. Chappell testified he told the applicant they would do whatever they could to accommodate him. Mr. Chappell testified he asked the applicant if he could use his manual wheelchair instead of his electrical wheelchair, but got no response. Mr. Chappell asked that question because there was a ramp down which stock, such as beer kegs, was delivered into the basement level and he thought the applicant could perhaps maneuver his manual wheelchair down there.

14The applicant asked about having a table for him upstairs and testified Mr. Poirier told him he would speak to Mr. Chappell and see if they could arrange that, but he doubted it. The applicant testified that after that there were no real discussions, although when he next saw Mr. Chappell at a game he asked about the table upstairs and Mr. Chappell said it was not possible, but they would carry the applicant down. The applicant testified there was no real discussion after Mr. Chappell offered to carry him because it went quiet. He testified it was very awkward after that, and he felt the respondents and Mr. Chappell ignored him.

15The applicant’s mother testified that at the end of March she called the venue directly and asked if they could put a table on the main floor for the applicant. The manager of the venue advised this was not possible. The applicant’s mother testified she was rude in response, told the manager this would be all over Facebook and hung up. She testified the manager called her back, told her she had been rude and advised her they would cancel the tournament.

16On March 31, the applicant posted a message on Facebook advising that River Poker was holding its tournament in a venue that was not wheelchair accessible, that he would not be attending any tournaments put on by River Poker because “they do not care if a person is disabled and it is all about the money.” The message further stated that the applicant hoped others would decide not to attend so that it may spur a change.

17Mr. Chappell testified that after the applicant’s mother called the venue and the applicant posted the Facebook message, he received a text from the venue saying it was cancelling the tournament because it did not want the negative publicity. Ultimately the tournament was moved to an accessible location in London because of the cancellation. The applicant found this out from another player, not from the respondents. The tournament took place six days after the originally scheduled date.

18Mr. Poirier testified the respondents did not consider a different, accessible venue because they had a contract with this venue and he did not know why this venue was not going to work when he believed it had worked in the past.

19The applicant testified that on April 10 his mother told him that she and he had been kicked out of River Poker. Mr. Chappell testified he suspended the applicant because of the postings he made, both on Facebook and on Urbanspoon that in his view violated the respondent’s Code of Conduct. He testified the applicant also was suspended to give him time to cool off and that he since has told the applicant he can return. He testified the other players were angry the tournament was postponed and the venue moved. He told the applicant he should lay low because of the anger.

the law and analysis

20Section 1 of the Code provides:

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

21Section 11 of the Code provides:

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

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

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

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

22The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”). The Court found that the procedural component requires an individualized investigation of accommodation measures and assessment of the applicant’s needs.

23There was no dispute the applicant has a disability and that he has a right to equal treatment with respect to services. The question is whether he suffered discrimination, and whether the respondents accommodated his disability in a manner which complied with the Code.

24I find that the applicant suffered discrimination and that River Poker’s actions and inactions amount to a breach of its procedural and substantive duty to accommodate the applicant.

Discrimination

25River Poker chose to have its prize tournament at a venue that was inaccessible to the applicant. By doing so, River Poker created a barrier for the applicant such that he could not access the service provided. I therefore find that River Poker has discriminated against the applicant pursuant to sections 1 and 11(1) of the Code. The applicant was unable to access the original venue because of his disability, and consequently that there is prima facie discrimination.

26I turn now to a consideration of whether the choice of venue was venue was reasonable or bona fide in the circumstances and whether River Poker accommodated the applicant.

Accommodation and Section 11 Defence

27The central issue is whether the discrimination can be justified under s. 11 of the Code.

28Under the legal approach to this question as set out in Meiorin and Grismer, and found by the Court of Appeal in Entrop v. Imperial Oil (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18, at paras. 77-85, to also apply in Ontario, the respondent must show that:

1. it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
2. it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
3. the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.

Grismer, supra at para. 20.

29In Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, the Supreme Court discussed the application of this approach to physical barriers at paras. 120-124 as follows:

The same analysis applies in the case of physical barriers. A physical barrier denying access to goods, services, facilities or accommodation customarily available to the public can only be justified if it is “impossible to accommodate” the individual “without imposing undue hardship” on the person responsible for the barrier. There is, in other words, a duty to accommodate persons with disabilities unless there is a bona fide justification for not being able to do so.

The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposes undue hardship on the service provider: Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525 (“Chambly”), at p. 546.

In Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 79, this Court noted that it is “a cornerstone of human rights jurisprudence . . . that the duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public is subject to the principle of reasonable accommodation”, which means “to the point of ‘undue hardship’”. Undue hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate.

What constitutes undue hardship depends on the factors relevant to the circumstances and legislation governing each case: Chambly, at p. 546; Meiorin, at para. 63. The factors informing a respondent’s duty to accommodate “are not entrenched, except to the extent that they are expressly included or excluded by statute”: Meiorin, at para. 63.

In all cases, as Cory J. noted in Chambly, at p. 546, such considerations “should be applied with common sense and flexibility in the context of the factual situation presented in each case”.

30Pursuant to section 11(2) of the Code, I cannot find that River Poker’s choice of venue was reasonable and bona fide unless I am satisfied that the applicant’s needs cannot be accommodated without undue hardship.

31River Poker must meet both the procedural and substantive obligations of the duty to accommodate. With respect to the procedural duty, it must show it has obtained all relevant information about the applicant’s disability and then seriously consider how it can accommodate the applicant. If it fails to give any or insufficient thought to what steps could be taken, then it fails to satisfy the procedural obligation. To satisfy the substantive obligation, River Poker has to show it could not have accommodated the applicant’s disability-related needs short of undue hardship.

32There was some dispute about when the applicant or the applicant’s mother approached Mr. Poirier and Mr. Chappell about the venue for the tournament, although the bulk of the evidence points to mid-March, 2014, approximately two weeks before the tournament date. However, River Poker knew of the applicant’s disability well prior to that, given the applicant had been playing with River Poker since 2012 and was in a wheelchair throughout.

33I accept that both the applicant’s mother and the applicant approached Mr. Chappell and Mr. Poirier about the chosen venue. Both of them requested that a table be placed upstairs so the applicant could attend the chosen venue and play. I accept the applicant’s evidence that after he asked Mr. Poirier about having a table upstairs and Mr. Poirier saying he would ask Mr. Chappell, the applicant got no response and had to follow up with Mr. Chappell.

34While Mr. Chappell argues that the applicant had been carried upstairs at another venue and this venue seemed to pose a problem that was no different, it should have been apparent to River Poker that this was not a satisfactory solution for the applicant. Mr. Poirier agreed that the applicant’s mother told him that the applicant did not want to be carried downstairs and that in response to that he said he would speak to Mr. Chappell about her concerns. River Poker was aware that the applicant did not wish to be carried downstairs. The applicant generally does not get to choose the exact kind of accommodation, nor does accommodation have to be perfect, but the applicant also does not have to accept an accommodation that is unreasonable, for example by virtue of being restrictive and inferior compared to the options available to persons without the applicant’s disability. See, e.g.: Brock v. Tarrant Film Factory Ltd., 2000 CanLII 20858 (ON HRT).

35In addition, there was no disagreement that both the applicant’s mother and the applicant spoke to Mr. Poirier and suggested the possibility of having a table upstairs at the venue so the applicant did not have to go downstairs.

36Neither Mr. Chappell nor Mr. Poirier gave any evidence with respect to what steps they took to determine if River Poker could accommodate the applicant by having a table upstairs. Mr. Poirier testified only that the contract was only for the banquet hall downstairs.

37Other than offering to carry the applicant, there was no evidence that River Poker did anything to try and accommodate the applicant. I am not satisfied that River Poker took sufficient steps to investigate whether the applicant could be accommodated at the Ingersoll restaurant it chose as the venue for its prize tournament. River Poker also at the outset could have chosen another venue that was accessible, which would not have constituted undue hardship. Once the Ingersoll restaurant cancelled River Poker’s prize tournament, River Poker was able to find an alternate, accessible venue and hold the tournament within 6 days of the originally scheduled date, which demonstrates that it was possible to hold the event elsewhere without undue hardship.

38River Poker has not satisfied me that it undertook sufficient investigations to satisfy the procedural component of the duty to accommodate or that it would have imposed undue hardship on River Poker to accommodate the applicant.

39The applicant alleges in his Application that he was “kicked out” of the poker league, but does not allege this was a reprisal, nor does he claim reprisal in the Application. As such, although the applicant and River Poker gave evidence about this event, I have not made any finding with respect to reprisal and this was not an issue raised at the hearing.

40I note that I make my findings as against the partnership of River Poker. Because both Mr. Poirier and Mr. Chappell are jointly and severally liable for River Poker, I find it unnecessary to make an individual finding against Mr. Poirier.

remedy

41Section 45.2(1) of the Code sets out the Tribunal’s remedial authority:

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:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Monetary Compensation

42The applicant seeks an award of $10,000 for injury to dignity, feelings and self-respect. Such an award includes recognition of the inherent value of the right to be free from discrimination.

43The applicant testified the experience of being discriminated against was unfair and that he felt victimized. He also felt a lot of worry about what happened. In part because of the negative interaction with River Poker. The applicant no longer goes to River Poker games, which he really enjoyed, and to which he used to go two or three times a week. As a result, he has lost friends and does not get out like he used to. He testified River Poker took that away from him.

44As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. The intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory act. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ONSC) at para. 150.

45In Lane the Divisional Court also says at para. 153:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

46As is indicated in Lane there is no fixed formula for the Tribunal to follow to assess a monetary compensation award, at para. 157, there is no limit to the amount that can be awarded, and the quantum must not be set too low because that would “trivialize the social importance of the Code” at para. 152.

47In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated at paras. 51-54:

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…

…The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination…

The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. …

…The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.

48In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed the factors to be considered in assessing an appropriate award for injury to dignity which include:

• humiliation experienced
• hurt feelings experienced
• loss of self-respect
• loss of dignity
• loss of self-esteem
• loss of confidence
• experience of victimization
• vulnerability
• seriousness, frequency and duration of the offensive treatment.

49I have reviewed cases involving the denial of services, which admittedly differ from these circumstances, but which are used as a guide. In Thai v. Hing Loong Investments Ltd., 2011 HRTO 2227, the applicant was awarded $2,500.00. The applicant had not experienced prolonged or repeated acts of discrimination and was not very dependent on this business. In Donnelly v. Spinz Coin Laundries, 2009 HRTO 754, the applicant was awarded $2,500.00 after experiencing two incidents of discrimination. While she lacked access to another laundry facility close to her home the award was reduced because of her confrontational behaviour. In Boudreau v. Kingston Bazar, 2012 HRTO 393, an applicant was refused services in a store because of the presence of her guide dog. The Tribunal awarded the applicant $15,000.00 because, although a brief encounter, the applicant was publicly embarrassed and humiliated. In Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433, the applicant was denied entry to a restaurant with her guide dog and was awarded $2,500.

50I have considered these cases and find it appropriate to award the applicant $5,000.00 for injury to dignity, feelings and self-respect. Considering the Boudreau case, the discrimination with respect to services in this case did not occur publicly, but the factor increasing the award to an amount greater than in Thai and Donnelly and Sweet is the emotional impact experienced by the applicant where he felt worried, victimized and unwelcome due to River Poker’s failure to accommodate his disability.

Non-monetary Remedies

51The applicants did not ask for any non-monetary or public interest remedies.

52Despite this, the Tribunal has the power under s. 45.2(1)3 of the Code to direct any party to an application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.

53River Poker and its partners do not understand fully their obligations under the Code. As such, I find it appropriate that Mr. Chappell and Mr. Poirier take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 30 days of this Decision and provide the applicant with written confirmation of having done so.

order

54I order as follows:

1. Within 30 days of the date of this Decision, the partnership of River Poker shall:

a. pay the applicant $5,000.00 as monetary compensation for injury to dignity, feelings and self-respect within 30 day days of the date of this decision; and

b. take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101), and provide the applicant with written confirmation of having done so within 30 days of the date of this decision.

2. Pre-judgment interest is payable on the monetary payment from the date of the Application to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.

3. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.