Craig Thomas Noseworthy v. 1008218 Ontario Ltd. o/a Super 5 Inn, 2015 HRTO 782

Human Rights Tribunal of Ontario

B E T W E E N:

Craig Thomas Noseworthy

Applicant

-and-

1008218 Ontario Ltd. o/a Super 5 Inn

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: June 12, 2015

Citation: 2015 HRTO 782

Indexed as: Noseworthy v. 1008218 Ontario Ltd.

APPEARANCES

Craig Thomas Noseworthy, Applicant

Self-represented

1008218 Ontario Ltd. o/a Super 5 Inn, Respondent

Binder Brar, Representative

Introduction

1This is an Application that was filed on July 24, 2014, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of goods, services and facilities because of disability.

2The applicant is a person with a disability who uses a power wheelchair as a mobility aid. He alleges that he was denied service when he arrived at the respondent hotel and could not rent a room because, although there were rooms available, there were no rooms that were accessible to a person who uses a wheelchair.

3There is little disagreement on the facts. The respondent does not dispute that the applicant is a person with a disability or that he was not able to access any of its rooms. The respondent raises the issue of whether it or the online booking service should be responsible for any Code breach that may be found.

THE FACTS

4The hearing of this Application was held on April 20, 2015. The applicant was present at the hearing. Mr. Binder Brar and Mr. Aakash Khatter, for the respondent, were also present.

5The applicant testified that he uses a wheelchair for mobility as a result of a disability that he has had for a number of years. He can walk very short distances if there are walls or other objects to hang onto for support. He lives in Hamilton, Ontario but his medical specialist’s office is in Mississauga, Ontario. He does not drive. He uses his power wheelchair to get to most places or he relies on public transportation that is accessible.

6He had a specialist appointment in Mississauga at 10 a.m. on April 15, 2014. Because the appointment was in the morning he planned to arrive in Mississauga on April 14, stay overnight and then attend the specialist’s appointment the following morning.

7He testified that he called the online hotel booking company, Hotels.com, prior to April 14, 2014. He told the person who answered the Hotels.com phone line that he needed to book a room in a hotel that was accessible to a person who uses a wheelchair and was located close to his doctor’s appointment. He gave the address of the specialist’s office to the person on the phone. He was told that the only hotel that was close to the specialist’s address that was accessible was the Super 5 Inn.

8The applicant testified that he was told that an accessible room was available at Super 5 Inn for April 14, 2014. He was asked for his credit card number. He told the person on the line that he did not have a credit card and he provided his debit card numbers. When the person from Hotels.com went to run the numbers through, he told her again, “it is debit not credit”. The person on phone asked for the numbers on back of the card. The applicant thought that it still appeared that she did not understand that the numbers were for a debit not a credit card.

9The applicant testified that the person on the phone again told him there was a room available for the night of April 14, 2014 but that he could not reserve the room with no credit card. He says that he, again, told them that he wanted to have a wheelchair accessible room and that he was again told that the Super 5 Inn has an accessible room but there is no guarantee that room would be available because he had no credit card to reserve that room.

10The applicant testified that he was not certain what date this call was made. Documents that were introduced by the respondent show that the reservation was made on March 26, 2014 at 12:48 p.m. and that it was cancelled on March 26, 2014 at 7:18 p.m. One of the respondent’s documents which is titled, “New Reservation” shows a copy of a transaction slip that has a note on the bottom that reads, ‘transaction not approved”. This document shows the applicant’s name, phone number, email address, the check-in and check-out times and the cost for the room. Under “Special Request” it is noted, “1 queen-Non-Smoking”. In cross-examination, the respondent asked the applicant if he had been aware that the reservation had been cancelled. The applicant replied that he thought he had a reservation and that he had been told that the hotel had an accessible room available. When asked if he had been given a cancellation number, the applicant stated that he had not been given any cancellation number when he had talked to Hotels.com on the phone and that he did not receive a copy of any reservation or cancellation document prior to receiving a copy from the respondent through this Tribunal process.

11The respondent also asked the applicant if he had seen the Super 5 Inn website to see that it does not say that the Super 5 Inn has accessible rooms. The applicant stated that he had only made the phone call to Hotels.com and he had not looked at the Super 5 Inn website.

12The applicant testified that he made the trip to Mississauga from Hamilton on April 14, 2014 using public transit. He recalls that it was a stormy day with heavy rain and thunder. He arrived at Super 5 Inn using his power wheelchair. Upon arrival, he noticed there was a big step to get into the office at the front of the hotel; because of this step into the office, he left his wheelchair outside and he walked into the office. He testified that he was not sure if it was Mr. Brar or Mr. Khatter who was in the office that day but stated that the men who were present at the hearing did look familiar to him. He recalls giving the person inside the office his name and being told that there was no reservation for him. He recalls that the man in the office told him there were rooms available and offered to show him one of the rooms on the main floor.

13The applicant testified that he went back outside with the person from the hotel office. He got back in his wheelchair and followed to a room that was to one side of the office. The applicant stated that when they got near the room he noticed that there was a step into the room that was about eight inches high. He told the hotel employee that he would not be able to get into the room with his wheelchair because of the step. He stated that he made a suggestion that if the hotel could get a board and put the board over the step into room, he could maybe drive the wheelchair into the room. He stated that he was told that it was not possible to have a board.

14The applicant’s evidence is that he knew then that that there was no way to get into that room using his wheelchair. He testified that the hotel employee suggested that he could lift the chair into the room. He stated that he explained to the employee that even if he could be lifted in, there would be a problem because he would not be able to get out safely. The applicant testified that once he is in the room he can hang onto walls and get around but without some type of ramp he could not leave the room. He testified that he would not leave his wheelchair outside of the room. It is an expensive electric wheelchair and it was raining.

15In cross-examination, the applicant was asked if the hotel employee had offered to lift the wheelchair into the room. The applicant responded that this had been offered but again stated that the problem was that even if they could have gotten the wheelchair into the room, he would not have been able to get out of the room in the night if he needed and when he needed to leave in the morning. He stated that the chair is very heavy, too heavy for one person to lift, and he cannot help to lift the chair.

16In cross-examination the applicant was asked if he remembered being shown a second room on the other side of the office. The applicant stated that he did recall being shown a second room but that there was also a step to get into the room. He stated that the step was not as high as the step into the first room but it was still too high for him to enter with his wheelchair.

17The applicant’s evidence was that after it was decided that he would not be able to get into a room, they went back to the office. The hotel employee told the applicant that he was going to call around to other hotels. The applicant left his wheelchair outside the office again so he could enter. He states that he did hear the hotel employee on the phone. He waited for about 10 or 15 minutes after which he was told that there was no hotel in the area that could accommodate him.

18The applicant’s testimony was that by this time he “was pissed”. He left the office, got into his wheelchair and left the hotel driveway using his wheelchair. He stated that it was pouring rain. He went across and down the street to another motel, the Mississauga Gate Inn. He described the Mississauga Gate Inn as accessible and accommodating. It had level access to the main entrance with a button for an automatic door opener at its main door. The rooms on the main level had level access. The room did not have an automatic door opener but he was able to get into the motel room because he could get right up to the door to use the handle.

19The applicant testified that within five minutes of arriving at the Mississauga Gate Inn, he had a room and he had paid for the room. This hotel had rooms available for the same $75 price that Super 5 Inn was charging for its rooms. He stated that he was puzzled to learn that there was this hotel with an accessible room so close to Super 5 Inn when he had been told by the Super 5 Inn employee that there were no hotels in the area that were able to accommodate him.

20The next day he got up and went to his specialist’s appointment for 10 a.m.

21The applicant gave evidence that he did call the Super 5 Inn later. He could not remember the exact date when he made that call. He stated that when he made the call he told the person on phone that his human rights had been “stepped on” and that he had asked to speak to the owner. He was told that the owner was not available at that time so he left his name and number. He states that he called back a second time and it was his understanding that he was put through to the person who was the owner of Super 5 Inn but he is not certain that he actually spoke to the owner. He stated that he told the person on the phone that his human rights were “crushed” and that there is no need for what happened. He stated that he told person on phone that he was going to take legal action and person on phone said to him “that is what it is”. He had no further interactions with Super 5 Inn after that call.

22The applicant stated that the legal action he took was what he is doing now, meaning this Application to the Tribunal. He is doing this because what he experienced is not fair to anyone. It was pouring rain with thunder and he was using a power wheelchair. He stated that he has to pay cash for most things since he does not have a credit card. He needs some sort of way to secure things for himself to make sure he can travel and stay in places that are accessible. He said that he tries to “ball park” his costs to make sure he can afford what he signs up for. He thought he had made the right arrangements. He said that he was not trying to cause anyone problems. He was just trying to get a place to stay that was close to his appointment as possible. He had planned ahead to get to Mississauga the night before and be rested to go to doctor the next morning for 10 am. He wanted a place to rest up and go to the doctor so that he would not have to rely on transit to rush to Mississauga from Hamilton on the morning of the appointment.

23The applicant stated that he was very upset by this experience. He was angry and very depressed. In his opinion, the hotel provides a service that everyone should able to use. There are a lot of people who use wheelchairs and who want to travel. He stated that he thought he had done what he needed to be sure he had a room before the specialist’s appointment. He described the significant impact that not getting the room at Super 5 Inn had on him because he was in an electric wheelchair and it was storming. He was away from home and in a new city so could not just call someone to come get him or help him. It was not his town and he did not know anyone. When he drove away from Super 5 Inn he was very upset he got drenched with rain. He said he was upset by the experience for some time after.

Evidence of Binder Brar

24Mr. Binder Brar identified himself as the part owner of respondent hotel. He testified that he started to run the respondent hotel in 1992. He also owns two other hotels. One hotel is the Deluxe Inn. It is similar to the respondent hotel. It is about 30 years old. He stated that it is his understanding that when these older hotels were built, it was not compulsory to have accessible rooms. He understands that if a new hotel is built now it has to have accessible rooms. He testified that the other hotel he owns was built in 2001 and it does have a room that is fully accessible to persons who use wheelchairs. He stated that at the hotel built in 2001, a person could drive the wheelchair right into the room and there is a special tub in the room.

25Mr. Brar testified that he had never had “this type of accident before” where someone just came to the respondent hotel and found that there was not an accessible room. He states that normally someone will call to ask if have they have an accessible room. He explained that Expedia owns Hotels.com. The process for hotels to post available rooms and for people to book rooms is no different whether it is through Expedia or Hotels.com. A hotel will tell Expedia/Hotels.com that they have a certain number of different types of rooms that Expedia/Hotels.com can sell. He described Expedia/Hotels.com as a third party and hotels pay commission for the booking services. Rooms can be booked either online or by a phone call. He explained that the person booking the room will pay the same rate whether they book through Expedia/Hotels.com, call the hotel or walk into the hotel to ask for a room.

26Mr. Brar testified that the respondent would never give Expedia the description of one of the rooms for Expedia to rent on the respondent’s behalf as wheelchair accessible because it does not have any wheelchair accessible rooms. He stated that the respondent does not advertise that it has wheelchair accessible rooms on any site. He presented a print out of a Hotels.com booking for Hampton Inn which he stated was to show how the booking of an accessible room would look. This document had notations, “Room: One King Bed, Accessible” and “Accessibility Requests: Accessible bathroom, Accessible path of travel, In-room accessibility”. When asked what “Accessible path of travel” meant, and that this was also noted on the New Reservation document for the respondent hotel, Mr. Brar explained that for the respondent hotel this is a sidewalk that passes in front of the rooms. The sidewalk is ground level but the entrance for the respondent hotel rooms is a step up from ground level.

27Mr. Brar testified that after the applicant made the reservation through Hotels.com, the reservation would have been sent to the respondent. He explained that the respondent would receive a New Reservation document and if Expedia/Hotels.com had booked an accessible room that would have been noted as the “type of room” on this document. When the respondent receives a New Reservation it checks the credit card number that the customer gave. If the respondent cannot authorize the credit card, then the room reservation is cancelled and Hotels.com is notified.

28When asked what is meant by “Hotel collects payment from traveller” that is noted on the New Reservation, Mr. Brar stated that means that the hotel collects payment for the cost of the stay from traveler. The credit card holds the room and if the person does not show to use the room, the hotel can charge the cost of the room to the credit card, but a customer can pay any way they want when they come to the respondent hotel except they cannot pay by personal cheque.

29Mr. Brar testified that the slip shown on the New Reservation document shows that the respondent tried to pre-authorize the applicant’s credit card and it did not go through so it cancelled the reservation. Once the hotel cancels the reservation, it is then up to Expedia/Hotels.com to send notification of cancellation to the customer. Mr. Brar explained that the reason why the respondent did not have a reservation for the applicant when he arrived on April 14, 2014 was because the respondent had cancelled it. When asked if the respondent would get notification that Expedia/Hotels.com had notified the customer that the reservation had been cancelled, Mr. Brar stated that the respondent would not receive such a notification. Mr. Brar stated that he did not know how Expedia/Hotels.com would notify the customer that the reservation had been cancelled if the customer had booked the room on the phone.

30Mr. Brar testified that when the applicant arrived at the respondent hotel on April 14, 2014 he was in the office with Mr. Khatter. He stated that when Mr. Khatter saw that there was a person with a wheelchair coming up the driveway, he walked outside to help him. He gave evidence that he saw the applicant and Mr. Khatter leave the office and head to the left of the office and then go to the right of the office. From where he was in the office, he could not see any of the rooms on either side of the office or hear what was being said between Mr. Khatter and the applicant.

31Mr. Brar gave evidence that Mr. Khatter and the applicant came back to the office. He saw the applicant leave his wheelchair outside and come into the office. He recalls the applicant saying that he had made a reservation for a wheelchair accessible room and that now they were telling him they did not have a room. Mr. Brar was not certain whether it was he or Mr. Khatter who explained that there were rooms available but none of them were wheelchair accessible. He stated that he then told Mr. Khatter to call other motels on Dundas Street. He stated that he saw Mr. Khatter making phone calls and that while he was making the calls, the applicant started yelling, banged the door and walked outside. He saw the applicant take his wheelchair and drive down Dundas Street. He did not see him after that.

32Mr. Brar testified that he remembers that after one or two months he was told by the Super 5 Inn front desk that there was a message from someone who wanted to speak to him. He stated that he called the applicant and asked him if he had left a message for Super 5 Inn. There appears to be some discrepancy as to whether the applicant called back to speak to Mr. Brar or whether Mr. Brar called the applicant. I find that this difference in evidence has no bearing on the outcome of this Application.

33Mr. Brar stated in evidence that he recalls the applicant saying that he had booked a room and they did not have a room he could use and then he had to go to another hotel on a rainy day. He remembers the applicant saying, “I was soaking wet and you are to compensate me.” Mr. Brar stated that he recalled telling the applicant “I was there when you came in. We tried to help you in the way that we can and that is all we can do.” Mr. Brar recalls the applicant saying, “I am going to sue you” and that he responded “that is your choice, what you do, we cannot stop you.” He states that he had no further interaction with the applicant until receiving notice of this Application.

34Mr. Brar submits that since the applicant had booked this room through the Expedia/Hotels.com booking service that this Application should have been brought against Expedia/Hotels.com rather than the respondent. He submits that Expedia/Hotels.com took the applicant’s reservation and they spoke to him so they should be responsible for any breach of the Code. He submits that the respondent did not discriminate against the applicant.

35He submits that the respondent did not make the reservation for an accessible room and when the applicant arrived they told him they did not have an accessible room. The respondent did not cancel the reservation because the applicant uses a wheelchair. It was cancelled because there was no valid credit card number.

36Mr. Brar also submits that using plywood over the step would not be safe and he did not want someone to get hurt. He also submitted that using plywood would not have made the room accessible because a fully accessible room includes an accessible washroom. He submits that the respondent hotel is old and there is nowhere to make it accessible. The respondent did not introduce any evidence about the safety of using plywood or the respondent’s ability to make rooms accessible.

Aakash Khatter

37Aakash Khatter testified that he is the respondent’s front desk clerk. He usually works from 6:30 a.m. to 2:30 p.m. He stated that his first duty is to give the best customer service to any guest who arrives at the respondent hotel. He stated that his second duty is to maximize the business for his employer, who he identified as Mr. Brar.

38Mr. Khatter’s evidence was that each morning when he arrives at work he looks through all the reservations to see which rooms are booked, who is staying on, and what time others have said they will check-in that day. On April 14, 2014, he saw the applicant coming up the respondent’s driveway. He noticed that the applicant was using a wheelchair and he went out to greet him outside so that the applicant would not have to take the step up into the office. The applicant told Mr. Khatter that he had a reservation. Mr. Khatter stated that he told the applicant that he did not see a reservation for him but that they had rooms available so he could go to pick up the master key to show him the rooms. Mr. Khatter stated that the applicant followed him into the office after leaving the wheelchair outside and telling Mr. Khatter that he could go into the office because he can walk a bit.

39Mr. Khatter recalls that he and the applicant went back outside and they walked toward a room and the applicant followed him using his wheelchair. Mr. Khatter stated that the room he showed the applicant had a step at its entrance door that was 8-10 inches high. When the applicant saw the step into the room he told Mr. Khatter that this room would not work for him because of the step. Mr. Khatter states that he then recalled that room 126 on the other side of the office had a lower step which he estimated to be 5-6 inches. They went to room 126 and he saw that the step was lower but the applicant told him that he could not get his wheelchair in with that step. Mr. Khatter recalls suggesting to the applicant that he could lift the chair into the room and that the applicant told him that the chair weighed 300 pounds so he could not lift it. Mr. Khatter stated that he did not have knowledge about this type of wheelchair so that is why he suggested lifting it. He also recalls the applicant telling him that there would be a problem because he would not be able to get out of the room and that he might be leaving early in the morning.

40It was Mr. Khatter’s testimony that he recalls the applicant asking if the hotel had some plywood or a plank because the applicant thought that if they did, he might be able to think about whether he could stay at the respondent hotel. Mr. Khatter did not recall what he said to the applicant in response to the request for plywood but he testified at the hearing that the hotel did not have any plywood.

41Mr. Khatter testified that he and the applicant went back to the office. They both entered the office. Mr. Brar was also in the office at that time. Mr. Khatter recalls looking at the hotel reservations because the applicant was saying that he had made a reservation for a wheelchair accessible room. Mr. Brar then asked Mr. Khatter to call other hotels. While he was making the calls to other hotels, Mr. Khatter could hear Mr. Brar telling the applicant that they did not have any rooms that were wheelchair accessible. Mr. Khatter stated that when he had called a couple of hotels and got off the phone, the applicant had already left the office.

ANALYSIS

Relevant provisions of the Code

42The Code provides as follows:

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

10(1). In Part I and this Part,

“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 … physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

43There is no dispute that the applicant has a “disability” as defined in section 10 of the Code.

44Although “services” is not defined in the Code, I find that offering and providing hotel rooms is a service within Section 1 of the Code. See: Arnold v. Dunedin House Bed & Breakfast, 2010 HRTO 323, and Anderson v. Stone Willow Inn, 2013 HRTO 979.

45The Code clearly prohibits discrimination in services on the ground of disability.

Inaccessibility of the office and guest rooms is constructive discrimination

46Discrimination can be direct or indirect. Direct discrimination occurs when an individual is treated adversely because of a personal characteristic covered by the Code such as disability. See: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143.

47Section 11 of the Code states as follows:

(1) A right of a person under Part I 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.

48The concept of “constructive discrimination”, as provided for in section 11 of the Code, recognises that a requirement imposed identically on everyone, such as a step up into a building, can have the effect of denying the right to equal treatment to people with personal characteristics protected by the Code. See also: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), in which an aerobic standard that disproportionately prevented women from obtaining firefighter jobs was found to be discriminatory. See also Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, in which the requirement to work Friday evenings was found to be discriminatory for an employee who, for religious reasons, was prohibited from working on Friday evenings.

49The “requirement” at issue in this case is the step that ranges in height from approximately 5 to 8 inches that one must go up in order to enter the office and the guest rooms at the respondent hotel. Although this “requirement” may appear to be neutral, it results in the exclusion of people with mobility disabilities who cannot navigate such a step and are therefore unable to enter and access the service that the respondent offers. As a result of this barrier, the applicant was not able to stay at the respondent hotel as he had planned and was forced to travel in his wheelchair to another hotel. The applicant experienced discrimination when the step created a barrier to him to accessing the respondent’s services.

The Duty to Accommodate

50This barrier to accessing the services offered by the respondent can only be justified under the Code if the respondent can establish that the requirement was “reasonable and bona fide”. The Tribunal may not find that the requirement is reasonable and bona fide unless it is satisfied that accommodating the applicant’s needs would cause “undue hardship” to the respondent.

51The Tribunal and the Courts have recognized, on a number of occasions, discrimination and obstacles which individuals with physical disabilities face in society as a result of constructive discrimination. See, for example, Wozenilek v. 7-Eleven Canada (“Wozenilek”), 2010 HRTO 407; Turnbull v. Famous Players Inc. (“Turnbull”), 2001 CanLII 26228; and Ontario Human Rights Commission and Lepofsky v. Toronto Transit Commission, 2005 HRTO 36.

52As the Supreme Court of Canada stated in Council of Canadians with Disabilities v. VIA Rail Inc. (“VIA Rail”), 2007 SCC 15 at para. 162:

The accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental human right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations.

53A respondent is not required to accommodate past the point of undue hardship, and sometimes, little or no accommodation may be possible. However, the person with a duty to accommodate must make a real effort to accommodate Code-related needs. Accommodation is a collaborative process: the person with a duty to accommodate is required to actively seek the information he or she needs, and must be prepared to consider and explore the possibilities. The person requiring accommodation must also cooperate in the attempt to find a suitable accommodation.

54Mr. Brar testified that the respondent offers available rooms to anyone who appears at the hotel, calls or makes a reservation. In offering these services, the respondent had a duty to provide equal access to this service. As noted in VIA Rail, at para. 121, under the concept of reasonable accommodation, service providers have a duty to provide persons with disabilities the same access to their service as persons without disabilities.

55The discriminatory barrier must be removed unless the service provider can prove that accommodating the right to the same access imposes undue hardship on the service provider. The factors relevant to establishing undue hardship are “cost, outside sources of funding, if any, and health and safety requirements”.

56The respondent did not, in this case, take all reasonable steps to explore whether it could accommodate the applicant nor, after the fact, did it take any steps to eliminate any of the barriers that denied the applicant equal services, let alone establish that it would have caused any undue hardship to do so.

57Aside from offering to physically lift the applicant into a room, no other options appear to have been explored at all, including the applicant’s own suggestion. The respondent submitted that putting the plywood over the step would not be safe because someone might trip. This impressionistic rejection and failure to explore other alternatives is insufficient to meet the duty owed by the respondent, particularly in light of the fairly minimal accommodation requirements arising in this case. The respondent did not provide any evidence to demonstrate that it had attempted to use plywood in the past nor did the respondent provide any evidence about other attempts that have been made to make entrances to the office and the guest rooms accessible to people who have mobility disabilities.

58The Supreme Court of Canada has confirmed Tribunal jurisprudence that states that beliefs or impressionistic evidence are not a sufficient basis to establish undue hardship. See for example British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [“Grismer”] at para. 41, and VIA Rail, above, at para. 226. See also Turnbull, above. The respondent provided no evidence regarding meaningful enquiries in respect of the cost, safety or feasibility of providing barrier-free access to the applicant. It bears noting that while these factors may appear somewhat formalistic, the immediate requirements of accommodating the applicant’s needs in this case were fairly straightforward. However, I am not satisfied that the respondent fulfilled its immediate obligations. Moreover, as noted above, the respondent provided only the most impressionistic evidence with respect to the impact of making the entrance to the office and the guest rooms accessible going forward. As a result, I find that the respondent did not establish that it had either met its immediate obligations, nor did it establish that making its facilities accessible going forward would result in undue hardship.

59Accordingly, the applicant has established a breach of section 11 of the Code in respect of the respondent’s failure to address the inaccessibility of the entryways to its office and guest rooms. The respondent has not shown that it would experience undue hardship in making any such changes.

Should Expedia/Hotels.com be Liable for the Code Breach

60The respondent submitted that because Expedia/Hotels.com did the room booking and appears to have mistakenly told the applicant that the respondent had an accessible room, it is Expedia/Hotels.com that is responsible for any discrimination that the applicant experienced. The respondent submits that it did not make the reservation for an accessible room and when the applicant arrived they told him they did not have an accessible room. The respondent did not cancel the reservation because the applicant uses a wheelchair. It was cancelled because there was no valid credit card number.

61I find that I cannot agree with the respondent’s argument. The service at issue in this Application is not the booking or reservation service provided by Expedia/Hotels.com. The service at issue is the renting out of guest rooms by the respondent. Mr. Brar stated that a person does not have to make a reservation or call in advance in order to rent a room at the respondent hotel. One can just arrive and ask to rent a room that is available. The respondent is providing the service of offering rooms for rent and, in doing so, it has a duty under Section 1 of the Code to provide equal access to those who wish to use this service. Regardless of whether the applicant had contacted Expedia/Hotels.com or not, he had the right to equal access to a room that the respondent had available. The applicant had the right to pay for the room and stay the night, but because of the physical barriers that were present, he was denied that right. The means by which a room is booked or not booked makes no difference to the respondent’s obligations under the Code.

REMEDY

62It follows from a finding of a Code breach that the applicant is entitled to a remedy for the infringement. The Tribunal’s remedial authority is set out in section 45.2 of the Code as follows:

45.2 (1) On an Application under 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

63The applicant request monetary compensation of $5,000.00.

64Under section 45.2(1)1, the Tribunal can make an order for monetary compensation for intangible losses. Among the factors that Tribunals should consider when awarding compensation for such damages are injury to dignity, feelings and self-respect. In interpreting the statutory language, the Tribunal assesses the subjective feelings of humiliation; the experience of victimization; the vulnerability of the applicant; and the objective seriousness of the offensive treatment.

65A degree of objectivity must be applied in assessing the amount of compensation; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. Where a person with a disability must leave his mobility device outside in order to enter the office and then, once in the office, is told that there are rooms available for rent but he is unable to rent one of these rooms because the owner has failed to ensure that a person with a mobility disability would be able to access the guest rooms, there is an objective basis to conclude that the customer will experience significant injury to his dignity, feelings and self-respect. See Wozenilek, above, at para. 44.

66An order for compensation for injury to dignity, feeling, and self-respect is a discretionary award. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for such an injury is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate: see ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC).

67I conclude that an award of $3,000.00 to compensate the applicant for loss of dignity and the injury to his feelings arising from the breach of his right to be free from discrimination due to his disability is appropriate. In determining the monetary remedy, I considered the applicant’s personal loss in this particular case. While there was no pecuniary loss involved, I accept that the applicant suffered both physical and psychological damage. The physical damage arises from the fact that he had to leave his wheelchair to enter the office and travel to another hotel in the pouring rain. The weather conditions made his experience with the respondent even more unpleasant. The psychological damage that he suffered relates to his embarrassment, his feelings on being denied his rights and the feelings of his loss of dignity as a person of worth. These are compounded by the fact that he was in an unfamiliar city and when he left the respondent hotel he would not have been sure whether he was going to be able to find a place to stay for the night.

68In addition to orders of monetary compensation, the Tribunal has the power under section 45.2(1)3 to direct any party to an Application to do anything that in the opinion of the Tribunal would promote compliance with the Code.

69As the applicant indicated, there are many people with physical disabilities who wish to travel and they should have equal access to available guest rooms as travellers without disabilities. In order to prevent a recurrence of what the applicant experienced, the respondent must ensure that the entryways of the office and at least one of the guest rooms are accessible to people who use wheelchairs.

70In addition, the owners and the managerial staff of the respondent shall watch the Ontario Human Rights Commission’s on-line training in order to more fully understand their obligations under the Code to provide equal access to their services to people with disabilities.

ORDER

71The Tribunal makes the following Orders:

a. Within 30 days of the date of this Decision, the respondent shall pay the applicant $3,000.00, as compensation for the breach of the applicant's rights under the Human Rights Code. This sum shall be paid by cheque payable to the applicant and sent to the address indicated in the Application.

b. Should the respondent fail to pay this sum within 30 days of the date of this Decision, the applicant is entitled to post-judgement interest on this amount calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

c. Within six months of the date of this Decision, the respondent shall ensure that the entryways of the office and at least one of the ground floor guest rooms are accessible to people who use wheelchairs. This shall include providing a ramp or appropriate grading so that the front door steps into both the hotel office and at least one of the ground floor guest rooms are not a barrier to persons who use wheelchairs. The respondent shall also install an electronic door opening device on the door into the hotel office.

d. Within three months of this Decision, the respondent’s owner and managerial staff shall complete the online learning module, Human Rights 101, available on the Ontario Human Rights Commission’s website: http://www.ohrc.on.ca/en/learning/human-rights-101-2014-ed.

e. The respondent shall provide proof to the applicant that it has complied with this Order. Within 30 days of completing the removal of the access barriers to the office and at least one guest room, the respondent shall send an email to the applicant at the email address provided in his Application to confirm that it has completed this removal of barriers and the Human Rights 101 learning module.