D’Angelo v. Innisfil (Town), 2016 HRTO 1020

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosalba D’Angelo

Applicant

-and-

The Corporation of the Town of Innisfil

Respondent

DECISION

Adjudicator: Mark Hart

Date: August 2, 2016

Citation: 2016 HRTO 1020

Indexed as: D’Angelo v. Innisfil (Town)

APPEARANCES

Rosalba D’Angelo, Applicant

Self-represented

The Corporation of the Town of Innisfil, Respondent

Lee Parkin, Counsel

1This is an Application dated January 21, 2015 alleging discrimination with respect to services because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant resides in a home located at an intersection of two streets in the respondent municipality. The municipal address of the applicant’s home is on one of these streets, and front of the home faces onto this street. However, driveway access to the home is provided from the other street.

3The applicant purchased this home in 2005. At that time, there was a footbridge over a drainage ditch on the street that the front of the home faces onto. The applicant accessed this footbridge through a gate in her fence. The footbridge was on a property that forms part of the Town’s road allowance. The Town has a bylaw expressly prohibiting anything from being built or maintained on a “road”, which includes a road allowance, and authorizing the Town to require the removal of any such object.

4In 2012, the Town gave notice to the applicant that the footbridge, as well as certain other items, were on Town property and subject to removal. The Town indicated that it was not requesting removal of these items at that time, but was making the applicant aware that if there were issues about these items in the future, the Town may ask the applicant to remove them or would remove them itself at the applicant’s expense.

5The applicant says that she had discussions about the footbridge with various Town officials over the ensuing period, but things came to a head in March 2014, when the Town issued a letter to the applicant stating that the footbridge needed to be removed for safety reasons. The Town requested that the footbridge be removed by the applicant by May 31, 2014. Much correspondence followed from the applicant to various Town officials, ultimately to no avail. When the applicant refused to remove the footbridge herself, the Town had it removed on June 26, 2014 at the applicant’s expense.

6In August 2014, construction work was done by the Town to install culverts along the street that the applicant’s driveway enters onto. This work resulted in what the applicant describes as a three inch “speed bump” near the end of her driveway.

7The allegations raised by the applicant in this proceeding are: (1) that the Town discriminated against her because of disability by removing the footbridge and/or failed to accommodate her disability-related needs; (2) that the removal of the footbridge was in reprisal for the applicant having sought to claim her Code rights; (3) that the Town discriminated against her because of disability due to the “speed bump” created at the end of her driveway and/or failed to accommodate her disability-related needs; and (4) that the creation of the “speed bump” was in reprisal for the applicant having sought to claim her Code rights.

8This matter was scheduled to proceed to a hearing on January 29, 2016. By Case Assessment Direction (“CAD”) dated December 11, 2015, I advised the parties that at the hearing on that date, I would hear the applicant’s evidence, including cross-examination, on the following points: clarification of the allegations raised by the Application and the specific factual basis to support her allegations; evidence regarding the specific nature of the applicant’s disability and her disability-related needs; and evidence regarding the alleged adverse impact or effect on the applicant because of her disability or disability-related needs as a result of the removal of the footbridge. As the driveway issue was clarified by the applicant at the hearing, I also heard her evidence regarding the alleged adverse impact or effect on her because of her disability or disability-related needs as a result of the creation of the “speed bump”.

9In the CAD, I indicated that after hearing the applicant’s evidence on these points, I would then invite submissions from the parties on whether the applicant’s allegations that her rights under the Human Rights Code have been violated by the respondent have a reasonable prospect of success. In providing this direction, I was exercising my authority pursuant to Rule 1.7 of the Tribunal’s Rules of Procedure to provide for the fair, just and expeditious resolution of this matter by defining and narrowing the issues in order to decide the Application and by directing the order in which issues would be considered and determined: see Rules 1.7(g) and (h). My direction also is consistent with this Tribunal’s established caselaw: see Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at paras. 9 to 32.

10The hearing proceeded on January 29, 2016, and I heard the applicant’s evidence, including cross-examination, on the points I had identified. I also heard the parties’ oral submissions on the issue of reasonable prospect of success.

The footbridge issue

11The applicant has been involved in an ongoing feud with some of her neighbours, over such issues as a port-a-potty installed on their property and ATVs being driven along the streets outside her house. The material filed with the Tribunal indicates that these neighbours in turn complained to the Town about the footbridge. And not just the footbridge. The applicant also had planted trees and flowers on Town property, and a railing and two large wagon wheels along the length of the footbridge. The applicant was informed by the Town that it had received complaints, and the Town also raised a concern about the impact of the applicant’s installations on the sight line for vehicles rounding the corner at the intersection where the applicant’s home is situated. The applicant expressed to the Town her disagreement that there was any impact on the sight line.

12It is not my task or jurisdiction to sort out competing complaints between neighbours. The only question for me is whether the applicant has any reasonable prospect of success in establishing that her disability was a factor in the Town’s removal of the footbridge. In my view, there is simply no support for any such conclusion. As noted above, the Town gave notice to the applicant in 2012 that the footbridge, as well as the other items installed by the applicant, were on Town property and subject to removal. At that time, the applicant had raised no issue with the Town regarding her disability. Her evidence before me was that the first time she raised a disability issue was when she says she spoke with the Mayor sometime in November 2013.

13The applicant’s evidence is that when she was first told that she had to remove the footbridge, the Town employee who told her this said it was due to neighbour complaints. In the letter to the applicant dated March 7, 2014, it is stated that the footbridge was on Town property without permission and that there had been a number of complaints from motorists stating that it obstructs their sight lines when rounding the corner. As a result, the Town stated that the footbridge needed to be removed for safety reasons. As stated above, I appreciate that the applicant disagrees that there is any real sight line obstruction. But the fact remains that the reasons stated for requiring removal of the footbridge are: that it was on Town property without permission; that there had been complaints to the Town; and that there was a concern about the obstruction of sight lines. While the applicant certainly raised her disability in much correspondence following this letter, the fact remains that there is no reasonable prospect in the evidence of her being able to establish that her disability was a factor in the Town’s removal of the footbridge.

14With regard to the applicant’s assertion that she requires the footbridge as an accommodation for her disability, there is simply no evidence before me that supports this. I appreciate that it may have been convenient for the applicant to have a footbridge that provided her with an alternate point of access to her property. But the fact remains that the applicant has a driveway onto a street that provides her with the ability to access her property. The relevant medical evidence submitted by the applicant includes a letter from her doctor dated August 27, 2015, which states that the applicant would benefit from the re-building of the footbridge in order to allow her to safely cross a dangerous ditch in front of her gate on Rose Lane. The doctor states that this would allow the applicant to walk with less pain on a uniform level, preventing unnecessary musculoskeletal injuries that could aggravate the applicant’s chronic knee and lower back pain.

15To be clear, no-one is suggesting that the applicant should be trying to traverse the ditch outside her gate onto the street to the front of her house. Rather, the point being made by the Town, with which I agree, is that the applicant already has access to and from her property by way of her driveway. Based upon the aerial photo of the applicant’s property introduced into evidence before me, the point of access from the applicant’s driveway onto the street is approximately 20 metres from where the footbridge was located. One of the issues raised by the applicant is that she used to use the footbridge to access the community mailbox. Based upon my measurements from the aerial photo, the distance from the applicant’s front door across the footbridge to the community mailbox is approximately 40 metres, while the distance from her side door down the driveway to the community mailbox is approximately 60 metres. There is no evidence before me to support that the applicant’s disability prevents her from walking an additional 20 metres.

16The applicant submitted into evidence a medical report from July 2012 indicating as part of her restrictions that she was unable to walk more than half a block. A difference of 20 metres is much less than half a block. In any event, there is a question as to the extent to which this restriction remains current for the applicant. In her evidence before me, the applicant acknowledged that in her normal daily activities, she regularly walks more than half a block. She testified that, as part of her daily routine (except when it is cold), she walks a route estimated to be about half a kilometre from her home.

17The applicant also raised the problem with the end of her driveway as part of the reason why she needs the footbridge. This will be addressed below. The point to be made here is that, if there is any problem with the end of the applicant’s driveway, this does not support any need for the footbridge. It would only support the need for repairs to be made to the applicant’s driveway.

18Accordingly, I find that the applicant has not established that she has a disability-related need that requires accommodation through the re-construction of the footbridge, given that she already has access to her property by way of her driveway.

19Finally on this issue, I will address the applicant’s allegation of reprisal. In order to prove reprisal, an applicant must establish that the respondent engaged in an action or threat which was intended as retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate. Such intention may be inferred from the circumstances: see Noble v. York University, 2010 HRTO 878 at para. 31.

20There is no doubt that prior to the removal of the footbridge, the applicant had claimed her rights under the Code, specifically in relation to her assertion that she required the footbridge as an accommodation for her disability. However, for the reasons stated above, I find that the applicant has no reasonable prospect of establishing that the footbridge was removed by the Town with the intent of retaliating against her because she had claimed a Code right. As previously stated, the Town already had given her notice in 2012 that the footbridge was on Town property and may need to be removed at some point in the future, before any Code right was claimed. Further, the March 7, 2014 letter from the Town advising the applicant that the footbridge needed to be removed preceded any written communication from the applicant in which she claimed a Code right. The applicant stated in her evidence that, prior to March 7, 2014, she had had oral discussions with Town employees and the Mayor in which she raised her disability, although her evidence on this point was quite vague. In any event, even if I accepted that she had these oral discussions, any such oral discussions, while they may establish that the Town was aware of her disability and claimed disability-related needs, do not establish that the footbridge was removed with the intent of retaliating against the applicant for asserting her Code rights. Rather, on the basis of the documentation before me and the applicant’s own evidence, she was informed by the Town that the footbridge needed to be removed because it had been constructed on Town property without permission, due to neighbour complaints, and due to the obstruction of sight lines for motorists rounding the corner at the intersection in issue.

21Accordingly, for all of these reasons, I find that the applicant has no reasonable prospect of success in proving that the Town’s removal of the footbridge amounted to discrimination against her because of disability or a failure to accommodate her disability-related needs, or that this was done in reprisal for her having claimed her rights under the Code. As a result, this aspect of the Application is dismissed as having no reasonable prospect of success.

The driveway issue

22As stated above, in August 2014, construction work was done by the Town to install culverts along the street on which the applicant’s driveway is located, which the applicant states resulted in a three inch “speed bump” near the end of her driveway. The applicant’s evidence is that she has difficulty traversing this three inch speed bump due to her disability, and that she has fallen on multiple occasions. She further testified that, during the winter, water pools at the end of her driveway and forms ice, which also poses a hazard for her.

23In her evidence before me, the applicant acknowledged that the work on the street was done by a contractor hired by the Town. With regard to the reprisal allegation, the applicant candidly acknowledged in her evidence that she cannot prove that the Town had an intention to retaliate against her because she claimed her Code rights, and instructed or directed the contractor to create a speed bump at the end of her driveway. In my view, any such allegation is far-fetched. Similarly, the applicant provided no evidence to indicate that the contractor was aware that she had a disability, with the result that she similarly has no reasonable prospect of success in proving that her disability was a factor in the contractor’s work creating any speed bump at the end of her driveway.

24Nor does the applicant’s evidence support that she is unable to traverse a three inch speed bump at the end of her driveway for disability-related reasons. As stated above, the relevant medical evidence before me consists of a letter from her doctor dated August 27, 2015 and a form completed by another doctor in July 2012. The August 27, 2015 letter makes no mention of any issue with the applicant’s driveway, but is focused solely on the footbridge. While the letter does state that re-building the footbridge would allow the applicant to walk with less pain on a uniform level, this statement is made in the context of the danger posed if the applicant were to attempt to traverse the ditch which the footbridge once spanned. As a result, this letter does not provide any support for the applicant’s contention that her disability prevents her from safely traversing a three inch speed bump. In addition, while the July 2012 report indicates a restriction at that time of the applicant not walking more than half a block, this report does not provide any support for the applicant’s claimed disability-related inability to safely traverse a three inch speed bump.

25With regard to the formation of ice at the end of the applicant’s driveway, there is no doubt that this would create a slipping hazard for any person but which may easily addressed through the use of salt or sand. In my view, this issue bears no relation to the applicant’s disability.

26Accordingly, for the foregoing reasons, I find that the applicant has no reasonable prospect of success in proving that the creation of a three inch speed bump at the end of her driveway amounted to discrimination against her because of disability or a failure to accommodate her disability-related needs, or that this was done in reprisal for her having claimed her rights under the Code. As a result, this aspect of the Application also is dismissed as having no reasonable prospect of success.

ORDER

27The Application is dismissed as having no reasonable prospect of success.