Kamis v. 1903397 Ontario Inc., 2015 HRTO 741

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosina Kamis

Applicant

-and-

1903397 Ontario Inc. o/a Layalina Hall and Restaurant

Respondent

DECISION

Adjudicator: Colin Johnston

Date: June 5, 2015

Citation: 2015 HRTO 741

Indexed as: Kamis v. 1903397 Ontario Inc.

APPEARANCES

Rosina Kamis, Applicant

Zahra Binbrek, Counsel

Layalina Hall & Restaurant, Respondent

Elisa Patee, Representative

Introduction

1This is an Application filed on July 18, 2014, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in the provision of services on the basis of disability. The applicant alleges that she entered the respondent restaurant with her service dog and was told by a staff member that her dog was not allowed on the premises.

Failure to Disclose Documents

2At the commencement of the hearing, the applicant objected to the respondent introducing any evidence during the course of the proceeding on the basis that the respondent failed to disclose any documents or provide witness statements in accordance with the HTRO’s Rules of Procedure.

3A Case Assessment Direction (“CAD”) was sent to the parties on March 4, 2015, which alerted the respondent that it had failed to comply with Rules 16 and 17 of the HRTO Rules of Procedure regarding pre-hearing disclosure of documents and witness statements. The respondent was given until March 13, 2015 to comply. The respondent failed to do so.

4The applicant’s counsel further stated she contacted the respondent’s representative, Elisa Patee, in advance of the hearing and requested copies of the documents and witness statements. She told Ms. Patee to contact the Tribunal if she did not understand the process.

5Ms. Patee stated that she did not receive a copy of the CAD. She conceded that it may have been received, but not passed on to her. It appears from the correspondence that the CAD was sent to the respondent by regular mail to the address set out in the Response. The respondent has not advised the Tribunal of a change of address. I am satisfied that the CAD was sent to the respondent.

6My impression of the respondent’s representative was that she was genuinely confused regarding the respondent’s obligations under the HRTO’s Rules of Procedure. English was not her first language. At the hearing, it was apparent that language was a barrier to her understanding the process.

7Ms. Patee is not the owner of the respondent restaurant. The owner was not present at the hearing. Ms. Patee explained that she was directed by the owner to attend the hearing because she is the manager of the restaurant and was the person in charge at the time of the events which are the subject of this Application.

8Ms. Patee stated that the respondent has no documents to enter as evidence. She confirmed that the testimony that she and another witness would provide will be no different from what was pled in the Response.

9Rule 5.6 of the Tribunal’s Rules of Procedure stipulates:

Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action its considers appropriate.

10I considered the request made by the applicant at the time of the hearing. I decided to exercise my discretion to permit the respondent’s witnesses to testify. I appreciate that the applicant did not have the benefit of witness statements in advance of the hearing. However, if the witnesses’ testimony did not stray from the Response, then the applicant would not have been caught by surprise or prejudiced. The respondent is not seeking to introduce any documents into the hearing. The respondent’s representative is not a lawyer or paralegal. English is not her first language. This explains some of the confusion regarding non-compliance with the Rules. For these reasons, I allowed the respondent’s witnesses to testify so long as they did not diverge from the facts pled in the Response.

Amending the Respondent’s Name on the Application

11The applicant made a further request to amend the respondent’s name on the Application to include its Ontario corporate number. The applicant provided a copy of a corporate search done on the respondent’s business, which discloses that the business is incorporated as 1903397 Ontario Inc. operating as Layalina Hall & Restaurant. The corporate owner is named as Minas Evanz. The respondent did not object to this request.

12It is ordered that the Application is amended to change the respondent’s name to 1903397 Ontario o/a Layalina Hall & Restaurant.

Evidence

13The applicant, Rosina Kamis, is a person diagnosed with a chronic medical disability that requires the use of a service dog. The service dog is a small black dachshund, named Poochie.

14The respondent, Layalina Hall & Restaurant, is a Middle Eastern restaurant that operates in the City of Windsor and is close to the applicant’s residence.

15I heard evidence from the applicant and two witnesses for the respondent, Elisa Patee and Orin Toney, a contractor who was present in the restaurant on the day the applicant came into the establishment.

16The applicant testified that she is diagnosed with post-traumatic stress disorder, depression, anxiety, and attention deficit hypersensitivity disorder.

17She provided three medical notes. The first, dated July 16, 2009, was from Dr. C. Velehorschi, a family doctor who treated the applicant when she was a student at the University of Windsor. The medical note confirmed that the applicant has a chronic medical disability and uses a service dog to assist in managing her condition. The second note, dated February 25, 2011, was from Dr. G.S. Duckworth, a psychiatrist who treated the applicant when she was living in Toronto. The medical note also confirmed that the applicant was being treated for a chronic medical disability and required a service dog to manage her disability. The final medical note, dated November 16, 2011, was from the applicant’s current treating psychiatrist, Dr. G. Villella. This letter also confirmed that the applicant was being treated for a chronic medical condition that required the use of a service dog.

18The applicant testified that she adopted Poochie in 2007. He was trained and certified as a service animal in November 2009, through a local trainer, Crossroads Canine Academy. The applicant explained that the dog helps her cope with many of the symptoms of her medical condition. The dog is also trained to alert her to dangers or things that may startle her when she is outside of her home. In public, he wears a vest that identifies him as a service dog. In addition, the applicant carries a card with her that identifies the dog as a service animal. She also keeps copies of the three medical notes that were put into evidence on her person.

19The applicant admitted that her dog did not always wear a vest in public. She explained that if she was simply taking the dog for a walk to relieve him she would not put the vest on. At all other times he wears the vest in public.

20The applicant described the incident, which is referenced in the Application as taking place on July 18, 2014. She testified that she and a friend, Jason Ives, were walking with the dog in her neighbourhood. They decided to go to the respondent’s restaurant to order a juice. The restaurant was new to her neighbourhood. She had never been in the restaurant and she wanted to see what it looked like inside.

21She described walking into the restaurant with her friend and her dog. When they first walked in, a man in the restaurant told them that the dog was not allowed inside. A woman who appeared to work there then walked up to them and greeted them. She told them that the restaurant was not licenced to permit dogs in the establishment. She could not recall if Ms. Patee was the woman who spoke to them. The respondent did not dispute that it was Ms. Patee who spoke to the applicant that day.

22She testified that the woman told them that the food regulations did not permit dogs in the restaurant. The applicant explained that her dog was a service animal and that there was an exemption in the Regulations for service dogs. The woman responded that she would get in trouble with the “Health Department” if she allowed the dog to stay. She then asked what they wanted. The applicant said that she wanted something to eat or drink.

23The applicant testified that Ms. Patee then asked her to leave. She and her friend then left the restaurant with the dog and proceeded to take pictures of the storefront with their cellphone to gets its name and address in order to file a complaint.

24The applicant testified that her dog was wearing his service vest and was on his leash next to her for the entire period they were in the restaurant. The applicant conceded that she did not show Ms. Patee the documentation confirming that her dog was a service animal, but stated it was obvious from the vest. She explained that she would have shown the documentation had she be given the chance. Instead, she was told to leave the restaurant.

25The applicant described how discouraged this made her feel. She described how she was initially sad and upset by the events but thought that something positive may come when she filed an application with the HRTO later that day.

26The respondent called two witnesses. The first witness was Elisa Patee, the manager of the restaurant. Ms. Patee testified that the restaurant had just opened in March 2014. It is a small Middle Eastern restaurant. In July 2014 there was still some construction going on in the restaurant. She was at the front of the restaurant speaking to a contractor when the applicant, her friend, and the dog entered the establishment.

27She testified that the applicant came into the restaurant with her friend and the two were arguing very loudly and were swearing at one another. She greeted them at the door and asked if she could help them. She stated that the applicant did not respond to her because she was still arguing with her male friend. The dog was on a leash but was very hyperactive and ran into the restaurant towards customers. The dog was not wearing a service vest. Ms. Patee stated that she told the applicant to control her dog because there were customers inside. That was the only comment she made about the dog.

28Before she could say anything else, the applicant’s friend left the restaurant and the applicant followed behind him. She testified that the applicant and her friend were only in the restaurant for a few seconds. On cross-examination, she admitted that they could have been in the restaurant for a longer period.

29She stated that there was no discussion about the dog being a service animal. She explained that if the applicant came in and told her the dog was service animal she would not have hesitated to invite them in. She explained that she had experience working with disabled persons, as well as training when she was a school bus driver. She was familiar with service animals. She stated that her son works at a large retail pet store. She had no issue with people coming in with service animals.

30She stated that she did not know the dog was service animal. She further stated that she was never given an opportunity to discuss the issue, as the applicant left as quickly as she arrived. She was sorry that the applicant felt badly about the incident but it was never her intention to bar her from the restaurant.

31The respondent’s second witness was Orin Toney, a contractor who was doing construction work at the restaurant. Mr. Toney testified that he was in the restaurant on the day the applicant came into the establishment. He recalled that he was talking to Ms. Patee at the front of the restaurant when the applicant came in with her male friend and the dog.

32He did not recall there being any customers in the restaurant at the time. He recalled that Ms. Patee went over to them and asked if she could help them. He said that the applicant and her friend came into the restaurant and stood to the side of the entrance talking to Ms. Patee. He was not paying attention to the conversation, as he was preoccupied with his work.

33He said that he heard the applicant speaking loudly to her male friend when they walked into the restaurant. He could not hear the conversation when they spoke to Ms. Patee. He recalled a small dog with beige and white markings. When he was shown the applicant’s dog at the hearing, he testified that he did not think this was the dog that was present that day. He did not recall the dog wearing a vest or anything that identified it as a service dog. He stated that he was familiar with service animals, as he has previous jobs working with disabled persons. He also worked as school bus driver with disabled students.

34He did not think the dog was a service animal because it was his understanding that these dogs normally walk with a special harness and vest. He recalled the dog was on a leash and seemed reluctant to come into the restaurant.

35He recalled that the applicant and her friend came into the restaurant and were there for a few minutes talking to Ms. Patee before they left. It appeared to him that the two left the restaurant with some reluctance after speaking to Ms. Patee. He did not hear what the conversation was about.

36He testified that he left the restaurant a few minutes later and saw the applicant and her friend outside the building. It looked like they were taking pictures of the sign and writing down information. He thought this was suspicious so he called Ms. Patee on his cellphone to warn her that he thought the two were up to something.

Submissions

37The applicant argued that she is diagnosed with a number of psychiatric conditions, which constitute a disability as defined in section 10 of the Code. She maintained that her service dog assists her with her medical condition.

38She argued that she was subjected to discriminatory treatment when she was barred from entering the respondent’s establishment with her service animal. The dog was wearing a vest that clearly identified it as a service animal. Moreover, she specifically told Ms. Patee that the dog was a service animal. She testified that she would have produced the medical documents confirming her need for a service dog to Ms. Patee, but was not given an opportunity as she was told to leave the restaurant.

39The applicant seeks compensation in the amount of $5,000 for injury to dignity, feelings and self-respect. She also requested non-monetary remedies, including an order that the owner and employees of the respondent’s restaurant be ordered to complete the e-learning Human Rights 101 training provided by the Ontario Human Rights Commission (OHRC). She also requested that the respondent be ordered to post the OHRC’s Human Rights cards in its restaurant.

40The respondent argued that the applicant never identified herself as someone with a disability and never identified the dog as a service animal. The animal was not wearing a vest and it was not readily apparent that the dog was a service dog.

41Ms. Patee stated that she was never given the opportunity to allow or deny entry to the applicant, as the latter was in the middle of an argument with her friend and left the restaurant as quickly as she came. There was no discussion about the dog except when she asked the applicant to control her dog.

42She stated that she would have gladly allowed the applicant and her dog in the restaurant but was never given that opportunity as applicant left in a hurry. She never told the applicant that she was not welcome in the restaurant with her dog.

43The respondent questioned why the applicant did not call her friend, Jason Ives, as a witness in the case.

44The respondent questioned why the applicant would come into the restaurant to buy juice when there numerous convenience stores in the neighbourhood, including one across the street, where she could buy juice at a much cheaper price. The respondent also questioned the applicant’s motive for filing the Application, asking why she was seeking monetary damages.

Analysis

45Section 1 of the Code states that every person has a right to equal treatment with respect to services, goods and facilities without discrimination on the basis of disability. A disability includes a mental impairment or mental disorder in accordance with section 10 of the Code.

46According to the applicant she is diagnosed with post-traumatic stress disorder, depression, anxiety and attention deficit hypersensitivity disorder. The medical information submitted (including two notes from psychiatrists) does not provide any details regarding diagnosis. It does support, however, the conclusion that the applicant has a chronic medical disability that benefits from the use of a service dog to assist her in managing the symptoms of her disability.

47Based on the applicant’s testimony and the medical information provided, I am prepared to find that the applicant is a person with a disability within the meaning of the Code. I further accept the applicant’s testimony and the certificate offered in evidence that her dog is certified as a service animal, for the purpose of assisting the applicant with her disability.

48Although animals are generally barred from entering restaurants, service dogs are expressly permitted under the Regulations to the Health Protection and Promotion Act, R.S.O. 1990, c. H.7, to enter food establishments: see O.Reg. 562/90, ss. 56 and 60.

49Under the Health Protection Regulations, 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.

50If the applicant’s dog does not meet the definition of a “service dog” under the Regulations, then arguably the respondent was entitled to deny access to the applicant and her dog based on the language set out in the Health Regulations.

51In this case, I accept the applicant’s evidence that her dog was wearing a vest identifying it as a service animal when she entered the respondent’s restaurant. I also accept the applicant’s evidence that she told Ms. Patee that the dog was a service dog and would have provided the necessary information had she given the opportunity to do so.

52In that regard, I found the applicant, Ms. Kamis, to be forthright in her evidence. She stated that on the day in question she walked into the respondent’s restaurant with her friend and her dog, and was approached by Ms. Patee, who told her that the dog was not permitted inside. This encounter lasted for about a minute or so. She and her friend reluctantly left the restaurant after being told to do so by Ms. Patee. She then stood in front of the restaurant and took pictures of the storefront to capture the name and address in order to file a complaint.

53I found the respondent’s witness, Mr. Toney, also to be forthright. His evidence for the most part corroborated the applicant’s version of events. While the applicant stated that the service dog was wearing a vest, he did not recall the dog wearing a vest. His recollection of the dog was somewhat vague in that he thought it was a different colour than the dog that was present at the hearing. He in fact was not sure if that was the dog he saw that day.

54Mr. Toney did recall Ms. Patee walking up and speaking to the applicant and her friend for a minute or two, and the two left the restaurant reluctantly. This was very different from version of the events provided by Ms. Patee, who claimed that the two were in restaurant for a matter of seconds and that they did not converse with her. Mr. Toney’s evidence also corroborated the applicant’s version of events that she stood in front of the restaurant taking down information after the incident took place. In all, I found Mr. Toney’s evidence to be credible as to the recollection of events that took place that day. The fact that he could not firmly recall the description of the dog does not undermine my confidence in the other evidence he provided. Where his evidence contradicts that of the applicant with respect to whether the dog was a wearing a vest or not, I prefer the evidence of the applicant, as Mr. Toney admitted that he was not visually focused on what the applicant and her dog were doing as he was preoccupied with his work.

55In making an assessment of credibility, I am guided by the principles established by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at pp. 356-357:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour 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.

56Given all the surrounding circumstances, the applicant’s version of events seems more credible than that provided by the respondent’s witness, Ms. Patee. There was no dispute at the hearing that the applicant’s dog was trained as a service animal. The applicant’s unchallenged evidence was that the dog was trained to walk calmly at her side whenever she was in public. As such, it makes little sense that the dog would run into the restaurant towards customers, as described by Ms. Patee. It also makes little sense that the applicant and her friend were only in the restaurant a few seconds and never spoke to Ms. Patee, in light of the evidence provided by Mr. Toney.

57Finally, it makes little sense that the applicant and her friend stood in front of the restaurant taking pictures of the storefront, if according to Ms. Patee they left the restaurant in a rush still arguing with one another. It is more probable that the two stood in front of the restaurant taking pictures because they were just told to leave.

58Based on all surrounding circumstances, I find that the respondent breached the Code when it denied her access to their restaurant on July 18, 2014.

Remedy

59The applicant seeks compensation for damages for injury to dignity, feelings, and self-respect. The applicant relied on the following case law to support her claim in remedy: Bourdeau v. Kingston Bazar, 2012 HRTO 393, Hill v. Bani-Ahmad, 2014 HRTO 937, Robdrup v. J. Werner Property Management, 2009 HRTO 1372, Schussler v. 1709043 Ontario, 2009 HRTO 2194, Smolak v. 1636764 Ontario, 2009 HRTO 1032, and Sanford v. Koop, 2005 HRTO 53.

60Most of these cases involve individuals who have been denied access to a restaurant or store because of the presence of a service dog. The monetary remedy ordered in these decisions varies significantly, from $200 to $15,000. Damages at the higher end appear in cases where the incident had a significant impact on the individuals involved.

61In deciding the appropriate compensation in this case, I take into consideration the applicant’s evidence that she found this incident to be initially upsetting, but soon realized that something positive would come of the events when she filed her application later that day. This is not trivialize the significance of what took place but simply provides a context to what impact the events have had on the applicant herself. In the circumstances, I award the applicant $2,000 in compensation for the injury to her dignity, feelings and self-respect, which arises out of the infringement of the Code.

62I am also satisfied that the circumstances in this case support an order for the non-monetary remedies requested by the applicant. The owner of the respondent’s restaurant was not present at the hearing. Although Ms. Patee acknowledged, on behalf of the respondent, that service animals were permitted within their establishment, there has been no acknowledgement of the events which took place on July 18, 2014. It is my view that the owner and staff of the respondent’s restaurant would benefit from learning more about their obligations under the Code. In this regard, I note that the e-learning module called “Human Rights 101” that I have ordered the respondent’s employees to take and the Code card that I have ordered the respondent to post are both available through the Ontario Human Rights Commission’s website.

Order

63The Tribunal makes the following order:

(a) Within 30 days of this Decision, the respondent shall pay $2,000 to the applicant as damages for infringement of the Code and injury to her dignity, feelings and self-respect;

(b) The applicant is entitled to post-judgment interest on this amount calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, commencing 30 days after the date of this decision;

(c) Within 30 days of this Decision, the owner and staff of the respondent’s restaurant shall complete the Human Rights 101 e-learning module provided by the Ontario Human Rights Commission and provide written confirmation to the applicant of the same; and

(d) Within 30 days of this Decision, the respondent shall post the Ontario Human Rights Commission’s Code card on its premises in places visible to its employees and customers and provide written confirmation to the applicant of the same.