Sprague v. RioCan Empress Walk Inc., 2015 HRTO 942

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Sprague

Applicant

-and-

RioCan Empress Walk Inc.

Respondents

DECISION

Adjudicator: Brian Cook

Date: July 16, 2015

Citation: 2015 HRTO 942

Indexed as: Sprague v. RioCan Empress Walk Inc.

APPEARANCES

Andrew Sprague, Applicant

Self-represented

RioCan Empress Walk Inc., Respondent

Alexandra Lev-Farrell, Counsel

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”). Specifically, the applicant alleges that on August 22, 2014, he was required to wait by a security guard at a mall when he tried to enter the mall with his service dog. The Application also alleges that the respondent, through certain signage, announced an intention to discriminate against him.

2The Application was heard on May 27, 2015. I heard evidence from the applicant, his spouse, the security guard’s supervisor, and the security supervisor of the security company which was contracted by the respondent.

3The respondent to the Application is RioCan Empress Walk Inc. The security guard and the security guard’s supervisor were employed by VP Protection Inc., which is an independent company that was under contract to provide security for the respondent. The respondent concedes however, that for the purpose of this Application, the security guards were the respondent’s agents and that the respondent accordingly bears any liability.

4The applicant is a practicing lawyer. Flicka is a service animal who the applicant got approximately two years ago. Flicka and the applicant were trained by the National Service Dog (NSD) Training Centre which utilizes the “Assistance Dogs International” standards. In a letter dated June 30, 2014, the NSD confirmed that Flicka is “a fully certified Service Dog”. The applicant is an active spokesperson for what he described as the service animal community and serves as an advisor to the NSD. He has featured in media stories about service animals. He has spoken publicly on several occasions about his life story which includes a history of severe sexual abuse as a child with a consequent post-traumatic stress disorder condition which has at times been very debilitating. The applicant testified that after he got Flicka, his life was transformed and he is able to function very well in his career and his family life. He testified that Flicka has been with him constantly since he got her.

5When Flicka accompanies the applicant in public spaces, she wears a blue vest that identifies her as a service animal. The vest has a pouch which holds an NSD certification that Flicka is a service animal. On the reverse side of the document, there is a note from the applicant’s treating psychiatrist. It states that the applicant requires a service animal for a disability.

6The applicant testified that he is often stopped when entering a business establishment with Flicka. He said that when he is stopped, he will produce the NSD certification and the medical note and that he is then allowed to proceed. He indicated that this is sometimes frustrating but that he has learned to “roll with the punches”. As discussed in more detail below, the applicant agrees that pursuant to the Accessibility for Ontarians with Disabilities Act, 2005, SO 2005, c 11 (the “AODA”) and the Code, a business is entitled to ask for verification that Flicka is in fact a service animal.

7The applicant testified that he has been asked for verification about Flicka when entering the respondent’s mall in the past. However, he confirmed that the Application concerns only the events on August 22, 2014.

8In respect of the evidence, it is to be noted that the security guard who stopped the applicant was not present as a witness at the hearing. That security guard was fired about one week following the events that gave rise to the Application. The respondent advised that the termination of his employment was not related to the Application and that the guard’s employment was terminated while he was still in his probation period, and before the respondent received the Application and before it was aware of the applicant's allegations. The security guard’s supervisor was present as a witness at the hearing. He is also no longer employed at the mall and is no longer working as a security guard. The end of his employment with the respondent also had nothing to do with this Application.

The facts of the case

9There is little disagreement between the parties about the basic facts of the case.

10In addition to the oral evidence of the witnesses, the evidence includes security camera video that shows some of the events in question.

11The applicant and his family live near the Empress Walk mall and frequently go to the mall’s stores. They also go through the mall to enter the subway.

12On August 22, 2014, the applicant and his spouse and Flicka were on their way to the subway and entered the mall for that purpose. The applicant’s spouse was 37 weeks pregnant with their second child. The applicant and his spouse had planned a “date night” to have some time with just the two of them before the impending birth of their second child.

13As they opened the doors from the street to enter the mall, they were approached by a security guard. The guard told them that they were not permitted to enter the mall with a dog. The applicant testified that he told the guard that the dog was a service animal. The applicant testified that he offered to show the guard the NSD certification and the doctor’s note that were in Flicka’s vest. He testified that the guard refused to look at these documents and instructed them to wait at the door while he went to the security office. The applicant testified that he asked the guard for his badge number but the guard refused to provide it.

14The applicant testified that his assumption was that the guard went to seek clarification about what to do. The applicant and his wife waited for a period of some minutes. There was some dispute about the number of minutes. The applicant suggested that it might have been as long as six minutes. However, from the video evidence, it appears that it was approximately four minutes.

15The applicant testified that during the wait, he was particularly concerned about his wife, who was 37 weeks pregnant. She told him that she was feeling discomfort from standing as they waited. The applicant’s wife confirmed in her testimony that she was feeling physical discomfort while standing. She said that because of her condition, the four minutes felt like eight minutes.

16After waiting for approximately four minutes, the applicant entered the mall, leaving Flicka with his wife, and walked the short distance to the security office. He looked through the window and caught the eye of the supervisor. The supervisor came to the door of the office and asked what he could do for the applicant. The applicant told the supervisor that the guard had prevented him from entering the mall with his service animal. The supervisor told him that if it was a service animal, he was free to enter the mall. The applicant asked the supervisor for the badge number of the guard and the supervisor provided this information. The applicant then returned to his wife and Flicka and the three of them proceeded through the mall to the subway.

17For the applicant, a key issue is what was going on in the security office in the approximately four minutes that he was kept waiting. There is security camera video of the events in the office but there is no audio. From reviewing this video, the applicant believed that the guard came into the room and told the supervisor what had happened. The guard then operated the camera controls to rotate a camera so that it was pointing at the applicant, his wife, and Flicka. Video evidence shows that the camera was rotated in this way and then zoomed in to Flicka. The applicant believed that the guard and the supervisor spent the four minutes looking at him in this way and that they might have continued to do so indefinitely if he had not gone to the security office.

18The supervisor testified that he did not know that the applicant and his wife had been detained and were waiting for the guard to return. He testified that the guard came into the office and mentioned that there had been an incident involving a man and a dog which the supervisor understood was resolved. The guard then went and did something with the camera controls which was something he did as part of his regular duties. The supervisor was not paying attention to what the guard was doing. The supervisor testified that he only found out that the applicant had been kept waiting at the door when the applicant came to the security office door.

19The supervisor’s evidence is consistent with an “incident report” that he completed later that evening. The incident report starts with the supervisor’s conversation with the applicant in which the applicant reported that the guard had not allowed him to enter the mall with his service dog. The report indicates that the supervisor explained “that the guard who approached him is new and is not a hundred percent familiar with the building rules/codes of conduct to the property.”

20It seems to me that the supervisor’s evidence is also consistent with the applicant's evidence about his interaction with the supervisor. If the supervisor had been watching the applicant with the guard, he would have known who the applicant was and what the problem was and would not likely have asked the applicant what he could do for him.

21The security video of the security office shows that after his interaction with the applicant, the supervisor said something to the guard. From the video, it appears that the supervisor was expressing frustration with the guard and perhaps criticizing him. This is also consistent with the supervisor’s version of events.

22I accept the supervisor’s testimony, and accept that he was unaware that the applicant had been kept waiting by the guard. It follows from this that the guard was solely responsible for delaying the applicant's right to enter the mall. There is no dispute that the supervisor immediately told the applicant that he was free to go through the mall with his service animal.

23The applicant testified that while he and his wife continued with their plans for the evening, the evening took a different course than they had planned. In part this is because the applicant immediately started entering data on his phone to make notes about the events at the mall. He continued doing this throughout the evening. When they returned home, the applicant went to his home office and completed the Application, which he filed with the Tribunal that night.

Signage and the respondent’s policy and training

24One of the issues raised in the Application is the signage on the doors to the mall. The signage consisted of a graphic showing that smoking and loitering were not permitted and nor were bicycles, roller blades or bare feet. The graphic consists of a picture of a cigarette, bicycle, etc., with a red line through the picture to show that they are not allowed. One of the pictures was a dog and it too had a red line through it. There was no information indicting any exception to this for guide dogs or service animals.

25The applicant raised the issue of the respondent’s signage in the Application. The respondent quickly addressed this and put a new sign on the doors which featured a graphic of a paw print with the words No Pets, but also with the words “service animals are accepted”.

26Sometime later, the applicant noticed that although the new sign was on the doors, on one of the doors, the old sign had not been removed. He brought this to the attention of the respondent’s counsel in January but nothing happened. He raised it again in April 2015, and shortly after that the old sign was removed.

27The respondent’s counsel indicated at the hearing that she had not received any complaint about signage in January 2015. However, on closer reading of the applicant's letter of January, she agreed that he had raised the issue. However, he also raised other issues and she had overlooked the signage issue. The matter was dealt with when the applicant sent another letter in April 2015.

28The applicant submits that in the period before the signage was corrected, the respondent expressed an intention to discriminate contrary to section 13(1) of the Code:

13(1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

29The respondent has an internal Code of Conduct that sets out expectations about acceptable behaviour on the part of patrons and tenants of the mall.

30Item 16 of the Code of Conduct read in part:

Dogs, or other larger animals, are not permitted within the property with the exception of “working animals” in the company of persons requiring assistance i.e. blind or otherwise physically challenged patrons.

31In the Application, the applicant alleged that this language is discriminatory. He argued that it might be acceptable if “e.g.” was substituted for “i.e.”. The applicant filed dictionary definitions showing that i.e. comes from the Latin phrase “id est”, which means “that is”, while e.g. comes from the Latin phrase “exempli gratia” which means “for example”.

32During the hearing, the respondent informed the applicant and the Tribunal that it would voluntarily immediately change the Code of Conduct. Instead of the above quoted language, the policy will state that dogs or other large animals are not permitted on the property “with the exception of guide dogs and service animals”.

33In his submissions, the applicant argued that the conduct of the guard was likely influenced by the signage and the Code of Conduct, which would have caused the guard to understand that dogs were not permitted unless a person had an obvious physical disability.

34The applicant alleged that the respondent and/or VP Protection Inc., which was the guard’s direct employer, had failed to properly train the guard. Rasha Antwan is the Security Supervisor of VP Protection Inc. She testified that she had trained the guard and that the training included training about service animals. She agreed however, that it is possible that the guard had not understood the training. She testified that when she reviewed the supervisor’s incident report mentioned earlier, she spoke to the supervisor and told him to review the training with the guard.

The legal framework

35Section 1 of the Code provides:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

36“Disability” is defined in section 10:

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997

37Section 11 provides:

11. (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 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.

38In regards to service animals, these provisions need to be considered together with the AODA. Section 4 of the Regulation to the AODA, “Accessibility Standards for Customer Service”, O Reg. 429/07, provides that:

4. (1) This section applies if goods or services are provided to members of the public or other third parties at premises owned or operated by the provider of the goods or services and if the public or third parties have access to the premises.

(2) If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.

(7) Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario shall prepare one or more documents describing its policies, practices and procedures with respect to the matters governed by this section and, upon request, shall give a copy of a document to any person.

(8) In this section,

“guide dog” means a guide dog as defined in section 1 of the Blind Persons’ Rights Act;

“service animal” means an animal described in subsection (9);

(9) For the purposes of this section, an animal is a service animal for a person with a disability,

(a) if it is readily apparent that the animal is used by the person for reasons relating to his or her disability; or

(b) if the person provides a letter from a physician or nurse confirming that the person requires the animal for reasons relating to the disability.

39As the applicant correctly points out, the combined effect of these provisions and the provisions of the Code is that if a person requires a service animal for a disability, the person is entitled to access premises such as a mall, provided either that it is readily apparent that the animal is used by the person for reasons relating to the person’s disability, or the person provides a letter from a physician or nurse confirming the need for the animal.

40If the person has met those requirements and is denied access to premises such as a mall, the person’s Code-protected rights may have been infringed and the person may bring an Application to this Tribunal.

41In this case, the applicant satisfied the requirements of section 4(9) of the AODA Regulation. He told the guard that he had certification that Flicka is a service animal and tried to show the documents to the guard but the guard refused to look.

42The respondent concedes that the applicant is a person with a disability and that Flicka is a service animal.

Analysis

43The Tribunal has noted on several occasions that human rights are highly contextual. Things done or said in one context may be completely innocuous or of little consequence but may be discriminatory in a different context.

44As noted earlier, the applicant testified that he and Flicka have been stopped on numerous occasions when entering business establishments. Most often, he only has to produce the documentation that he carries with him and is then allowed to proceed. Sometimes he has been briefly held up before being allowed to proceed. He indicated that some of these encounters may have involved interventions with staff of the business establishment who have been unsure of the rules and who have had to check.

45During the hearing, I asked the applicant to explain what it was about the events in this case that caused him to file the Application. It became clear that the two primary factors were the way the security guard behaved and the fact that the applicant was with his wife who was 37 weeks pregnant. During the time they were waiting, the applicant's wife complained that she was in discomfort from having to stand. She was also nervous about why they had been stopped and what might be happening in the time after they were detained. The applicant’s wife testified that to her knowledge, the applicant had never before been detained because of Flicka. This is consistent with the applicant's evidence that he is accustomed to being asked and that usually the encounters are not of any lasting consequence for him.

46It is thus clear that the fact that the applicant was with his very pregnant wife was an important contextual component of why the applicant felt that his human rights were infringed on August 22, 2014, and not on other occasions when he and Flicka had been stopped and delayed when entering business establishments.

47From the applicant's testimony and submissions, it appears that another factor was the nature of the encounter with the guard. On the basis of the applicant's un-contradicted evidence, the guard was abrupt and rude. He did not seek any clarification from the applicant about Flicka, such as why she was wearing a vest identifying her as a service animal. He refused to look at the applicant's documents. He ordered them to stay at the entrance. He then left them to go to the security office. As the applicant pointed out, if the applicant had not gone to the security office to see what was happening, the wait would have been longer.

48In this case, the respondent submits that the events that occurred at the mall on August 22, 2014 were not discriminatory. In the respondent’s view, the fact that the applicant was detained at the mall entrance by security guard may have been an inconvenience for the applicant and may have been frustrating, but the events cannot be seen as sufficiently egregious to amount to a violation of the applicant's Code-protected rights.

49The respondent submits that the facts of this case are distinguishable from other cases decided by the Tribunal that have involved service animals or guide dogs. In those cases, the applicants were denied access to premises.

50The respondent submits that in this case, the applicant was not denied access to the mall. When the supervisor became involved, the applicant was told that he was free to go through the mall. The supervisor did not even ask to see the certification to establish that Flicka was in fact a service animal. The respondent concedes that the guard acted improperly in telling the applicant to wait but argues that the consequence of that improper behaviour was a wait of about four minutes.

51The applicant submits that the test for establishing discrimination requires an applicant to prove that he is a person with a disability, that he received adverse treatment, and that his disability was a factor in the adverse treatment. The applicant cites Shaw v. Phipps, 2010 ONSC 3884, upheld 2012 ONCA 155, and Peel Law Association, ONCA 396.

52The applicant submits that the Code does not specify the degree of adverse treatment.

53Although the inconvenience of waiting for four minutes may appear to be relatively inconsequential, it appears to me that the applicant was in fact denied access to the mall by the guard. It was only because the applicant went to the security office to find out what was happening that the applicant was permitted to enter the mall.

54Although the applicant did not know this at the time, the available evidence shows that the guard did not in fact go to the security office to seek instructions about what to do. He mentioned to the supervisor that there had been some sort of encounter with a man and a dog but did not indicate that this was an ongoing situation. He then operated the security camera to watch the applicant and Flicka but took no steps to figure out how the situation might be resolved. There is no evidence that the guard intended to return to them at all. But for the applicant's action of going to the office, the applicant could have been kept waiting indefinitely and certainly for more than four minutes.

55In considering the context of the events on August 22, 2014, I find that the applicant did experience an infringement of his Code-protected rights when he was denied entrance to the mall.

56I find that the applicant did not experience discrimination because of the signage on the respondent’s door. The applicant speculates that the security guard may have been influenced by the signage to believe that no animals were permitted in the mall. The evidence shows that the guard was given training about the requirements of the AODA. If he had understood the training, he would have understood that service animals were permitted, although the evidence also shows that he may not have understood that training. To the extent that the signage is relevant, it is also relevant that the signage was immediately changed when the applicant brought the issue to the respondent’s attention. There was an exception on one door where the old signage was not removed when the new sign was posted. There is no evidence that this was anything but an error that was corrected when the applicant pointed it out, although the first time he pointed it out the point was missed by counsel as it was made in a submission that covered a number of other points. There is no evidence to suggest that the respondent’s intention was to discriminate contrary to section 13 of the Code.

Remedy

57The Tribunal’s remedial powers are set out in section 45.2 of the Code:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

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.

58The applicant submitted that he is entitled to a substantial amount of compensation for the injury to dignity, feelings, and self-respect that he experienced, and suggested that an award of at least $10,000 is in order.

59The applicant submitted that part of the injury to dignity, feelings, and self-respect that he experienced occurred in the period after he filed the Application. He said that he was particularly taken aback by some of the comments made in the Response which he felt questioned whether he has a disability and questioned whether Flicka really is a service animal. He was upset that the respondent asked that the Application be dismissed as having no reasonable prospect of success. The applicant indicated that on the other occasions when he has filed an Application with the Tribunal, the respondents to those Applications responded very quickly with an apology. In this case, the respondent did not apologize and instead filed what the applicant felt was an aggressive Response.

60Under the current human rights system in Ontario, filing an Application starts a litigation process. While it is certainly possible that an apology from the respondent could have avoided the considerable time and energy that preceded the hearing in this matter, a respondent can respond to litigation as it sees fit. The respondent fulfilled the requirement to respond to an Application which named it as respondent. There is no suggestion that the respondent abused the Tribunal’s process in any way.

61I find that the applicant is not entitled to any damages on the basis of the respondent’s litigation strategy.

62I find that the applicant is entitled to monetary compensation for injury to dignity, feelings, and self-respect that he experienced on August 22, 2014 when he was denied access to the mall by the respondent’s agent.

63In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the Tribunal’s general approach to assessing compensation for injury to dignity, feelings and self-respect in the following terms, at paragraphs 52 – 54:

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: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

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. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

The factors identified in Sanford v. Koop are:

• Humiliation experienced by the complainant

• Hurt feelings experienced by the complainant

• A complainant’s loss of self-respect

• A complainant’s loss of dignity

• A complainant’s loss of self-esteem

• A complainant’s loss of confidence

• The experience of victimization

• Vulnerability of the complainant

• The seriousness, frequency and duration of the offensive treatment

64In addition to these factors, it is also appropriate to consider the amounts of compensation awarded in earlier comparable cases.

65As noted, the applicant's evidence is that the evening with his wife on August 22, 2014 was ruined because of the discrimination he experienced. He agreed that in large part this was because he spent most of the time that followed the events documenting what had happened which meant that he could not spend the time enjoying the company of his wife and in anticipation of the impending birth of their baby.

66The applicant testified that he experienced continuing effects of the events of August 22, 2014. He said that he attends for regular psychotherapy and that he required additional therapy to deal with the effects of the discrimination he experienced on August 22, 2014. The applicant has not provided any medical evidence to support this. I further note that according to the applicant's hearing brief, the additional therapy was largely related to the impact of the Response and the emergence of “new pieces of the true and full story” over the following months.

67As noted earlier, in my view, the applicant is not entitled to additional damages for his reaction to the litigation process. In my view, he is entitled to compensation for injury to dignity, feelings, and self-respect that he experienced as a result of being detained from entering the mall on August 22, 2014.

68In considering other cases decided by the Tribunal, there have been other cases involving service animals and guide dogs.

69In Schussler v. 1709043 Ontario, 2009 HRTO 2194, the applicant entered a buffet restaurant with a service dog but was not permitted to go to the buffet table. The restaurant staff the applicant encountered were “very pleasant and polite”. The applicant in that case was awarded $500 for injury to dignity, feelings, and self-respect.

70In Robdrup v. Werner Property Management, 2009 HRTO 1372, the applicant was awarded $200. In that case the applicant’s tenancy in an apartment was terminated and he alleged that it was because he had a service dog. The Vice-chair concluded that the termination of the tenancy was not related to the service dog but found that the tenant had been discriminated against during the tenancy because of the service dog but also found that the applicant’s own behaviour contributed to what happened.

71In Smolak v. 1636764 Ontario, 2009 HRTO 1032, the applicant was a visually impaired person who was not admitted to a restaurant with her guide dog. The applicant was awarded $2,000 for injury to dignity, feelings, and self-respect.

72In Hill v. Bani-Ahmad, 2014 HRTO 937 the applicant was a blind person who was denied entry to a restaurant because he had his guide dog. The respondent in that case expressed remorse for what had happened. The server who refused entrance was found to have been polite and there were no other factors that contributed to the events. The applicant in that case was awarded $5,000.

73In Bourdeau v. Kingston Bazar 2012 HRTO 393, the respondent did not respond to the Application. As a result, the applicant’s allegations were deemed to be accepted by the respondent. The applicant in that case was a blind person who was denied entrance to a grocery store because he had a guide dog. The Vice-chair accepted that the person who denied entry was “abusive” and that the applicant was “understandably extremely upset”. The applicant in that case was awarded $15,000.

74Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433 involved a person with a service dog who was denied access to a restaurant. She had come to the restaurant to celebrate being allowed to bring her dog to school. She was awarded $2,500 for injury to dignity, feelings, and self-respect.

75C.C. v. J.L o/a […] Restaurant, 2014 HRTO 1625, is a case involving a service animal referred to by the applicant in his submissions. That case is factually complex and involves a number of different interpersonal situations over a period of time. In my view, it is not helpful in deciding a remedy in the present case.

76In his submissions, the applicant suggested that the Tribunal had been gradually increasing the awards in cases where a person was denied access to a business because of a service animal or guide dog. He noted that Robdrup and Schussler were earlier cases and small amounts were awarded in them. Smolak and Hill, and then Bordeau were later cases, and attracted larger awards. In the applicant's submission, Sweet, which came more recently, inappropriately reversed that trend.

77As the Tribunal’s jurisprudence makes clear, compensation that is awarded for injury to dignity, feelings, and self-respect under the Code is awarded on the basis of all of the evidence and the particular circumstances of the discriminatory event and its impact on the person who has experienced discrimination.

78The applicant respectfully argued that in Sweet, which I authored, I had inappropriately made a distinction between guide dogs used by visually impaired people, and service animals, such as Flicka. The applicant submitted that this distinction could suggest that his disability was seen as less valid than vision impairment.

79In Sweet, I commented as follows at paragraph 58:

At the same time, I do agree that confusion about the status of service animals is an issue. While it is clear that people other than blind people may benefit medically from animals, this may not be widely understood. It similarly may not be widely understood that this has been codified in legislation and that in certain circumstances people are legally entitled to be accompanied by a service animal, or, in the case of restaurants, a service dog.

80An example of this point is the finding in Smolak for the applicant, who is a person with vision impairment, testified that being denied access to a restaurant with her guide dog was “quite shocking to her as she had never experienced this before.” In contrast, in the present case, the applicant testified that he is very often stopped when entering commercial establishments with Flicka. The applicant is not shocked when this happens because he expects that it will happen. Most often, when it does, he shows his documentation and is allowed to proceed.

81The applicant accepts that the AODA anticipates this sort of approach, as under that Act, a service animal is by definition a service animal if it is readily apparent that the person requires the animal (as is generally the case, for example, with a person with visual impairment with a guide dog), or the person produces certification.

82This is not to suggest that one kind of disability is more or less valid than another disability. It is rather to suggest that all of the circumstances, including how the person who experienced the discrimination was affected, must be considered.

83As discussed, in the instant case, the problem (and the discrimination) arose when the security guard refused to look at the certification, and then left to go to the security office, ostensibly to obtain instruction about what to do, but in fact, based on the available evidence, to watch the applicant on the security camera system. In my view, it is of further significance that the respondent in this case is very large undertaking. Unlike small establishments like the independent small businesses in most of the cases noted above, the respondent was well aware of the service animal provisions in the AODA. As a large employer, it has been required to develop a plan to implement the AODA requirements and to develop appropriate policies. In this case, the evidence suggests that the respondent or its agents failed to ensure that the security guard was fully trained and aware of these policies.

84At the same time, it is obviously important to consider what actually happened. In particular, the consequence of the guard’s action was that the applicant and his wife were kept waiting for approximately four minutes. The applicant's wife experienced physical discomfort because of her pregnancy and this was distressing to the applicant. The applicant then went to the security office and was immediately permitted to proceed by the supervisor.

85While I have found that the applicant experienced discrimination in this encounter, objectively, this encounter is obviously not one that would be expected to result in a high amount of damages for injury to dignity, feelings, and self-respect. In consideration of the applicant's subjective experience, I accept that he was upset by the experience. I accept that as a result of the experience, he spent the evening documenting it and filing the Application. On the basis of the evidence before me, I do not accept that the applicant had any significant lasting effects from the encounter itself. From the evidence, it appears that any lasting effects have arisen because the respondent did not apologize, as the applicant expected them to do, and because of the respondent’s litigation strategy.

86In consideration of the evidence before me, I find that the applicant is entitled to an award of $1,000 in compensation for injury to dignity, feelings, and self-respect as a result of the encounter on August 22, 2014.

87I find that no order is necessary to ensure future compliance with the Code. The guard who was responsible for the discrimination is no longer working for the respondent or its agent. The signs on the doors to the mall have all been changed, and the respondents have undertaken to change the language of the internal Code of Conduct dealing with service animals.

ORDER

88The respondent shall pay the applicant $1,000 as compensation for injury to dignity, feelings, and self-respect. Payment shall be delivered to the applicant within one month of the date of this Decision and post-judgement interest in the amount of 3% is payable on any amount not paid by that time.