HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
P.G. Applicant
-and-
Groupe Restaurants Imvescor Restaurant Group Inc. o/a Baton Rouge Restaurant Respondent
DECISION
Adjudicator: Brian Cook Date: April 18, 2016 Citation: 2016 HRTO 500 Indexed as: P.G. v. Groupe Restaurant Imvescor Restaurant Group Inc. o/a Baton Rouge Restaurant
APPEARANCES
P.G., Applicant Self-represented
Groupe Restaurant Imvescor Restaurant Group Inc., o/a Baton Rouge Restaurant, Respondent No one appearing
1This Application alleges discrimination and harassment in regard to service at a restaurant because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is a person with a number of health issues. In the Application, he states that he has post-traumatic stress disorder, obsessive compulsive disorder and germaphobia. Especially in combination, these issues can make ordinary activities of daily living to complex processes. The applicant likes to go to restaurants with his spouse, but to enjoy the experience, he requires some accommodation in regard to service and how his food is prepared and served. The applicant attended the respondent’s restaurant on several occasions and was accommodated. Following a change in ownership, he was not accommodated and was eventually denied service at the restaurant.
2The Application was heard on December 14, 2015. The applicant’s final written submissions were filed on January 18, 2016.
The Respondent
3The restaurant is a Baton Rouge restaurant. The Application was delivered to the respondent at the address provided by the applicant in his Application. The Notice of Application (“the Notice”) directed that a Response must be filed with the Tribunal no later than January 23, 2015. The Notice was sent by regular mail and was not returned to the Tribunal as being undeliverable. The Notice contained the following warning:
If you fail to respond to the Application, the HRTO may deem you to have accepted all of the allegations in the Application, deem you to have waived all rights with respect to further notice or participation in the proceeding, proceed to deal with the Application without further notice to you and decide the matter based only on the material before the HRTO.
4On December 30, 2014, the Tribunal received an email from a person who identified himself as the General Manager of the restaurant. He advised that the owner of the restaurant was out of the country, and asked that the time for filing the Response be extended to February 17, 2015. That request was granted.
5On March 18, 2015, the Registrar sent a letter to the parties advising that a Response had not been received. The respondent was again reminded of the potential consequences for failing to provide a Response and was directed to file a Response by April 7, 2015.
6On April 6, 2015, the Tribunal received a Response. However, it contained no information apart from providing a contact name and the address of the restaurant.
7On May 14, 2015, the Registrar wrote to the respondent to advise that the Response was not complete and directing the respondent to file a complete Response by June 3, 2015. Another letter re-iterating the direction was sent on June 18, 2015.
8On July 20, 2015, a letter was sent by the Registrar advising that if the respondent had not contacted the Tribunal by August 4, 2015, the Tribunal might proceed to process the Application with no further notice to the Respondent.
9On August 11, 2015, the Tribunal issued an Interim Decision. The Interim Decision reviewed the history of the Application and concluded at paragraphs 6 - 8 as follows:
In Kearns v. 1327827 Ontario, 2009 HRTO 457 at paras. 11 to 14, the Tribunal set out its approach where a respondent fails to file a Response after having been cautioned by the Tribunal about the consequences of not doing so. As the Tribunal noted, after having been provided clear notice of what is required, a respondent who refuses or chooses not to file a Response should not be able to frustrate the objects of the Code, and the applicant’s rights to assert a claim and seek a timely determination of that claim.
Where no Response is filed, the Tribunal will proceed to determine the Application in the absence of the respondent. In all but the rarest of cases, the Tribunal will deem the respondent to have waived its right to participate in the proceeding and deem the respondent to have accepted all of the allegations set out in the Application. I am satisfied that the respondent has received the Notice of Application and the further direction requiring the filing of a Response. The respondent refuses or has chosen not to participate in these proceedings.
For the reasons set out above, I make the following order:
a. The respondent is deemed to have accepted all of the allegations set out in the Application;
b. The respondent is deemed to have waived all rights to notice or participation in these proceedings; and
c. The respondent is not entitled to further notice with respect to the Application.
10The Interim Decision was delivered to the parties. The Tribunal has received no further communication from the respondent.
11The Interim Decision directed that a telephone conference call be held to clarify the issues and the applicant's allegations. Following that, the Tribunal directed that an in-person hearing be held, and this was scheduled for December 14, 2015. The applicant and his spouse attended the hearing. I heard evidence from the applicant and his spouse and submissions from the applicant.
12At the conclusion of the hearing, an issue was raised concerning the legal name of the respondent. The applicant was permitted to clarify this post-hearing and with the assistance of the Human Rights Legal Support Centre, he provided a corrected corporate name.
13The name and contact information provided post-hearing corresponds with the name and contact information for the Head Office of Baton Rouge restaurants, as listed on its website. The applicant indicated at the hearing that he believed that the particular restaurant where the events relevant to this Application occurred was a franchise. However, based on the post-hearing information, it appears that may not be correct.
Evidence
14The applicant testified that he has been disabled and unable to work because of his medical conditions since 2002.
15The applicant testified that prior to September 2013, he and his spouse went to the Baton Rouge restaurant in their neighbourhood on a regular basis, usually once a week. He disclosed his conditions to the manager and the staff at the restaurant and he was accommodated.
16If the restaurant was not busy, the applicant and his spouse would usually be seated in an area of the restaurant away from other patrons. The staff would try to seat him at the same booth each time. The booths have vinyl seats and the staff would clean the seats in view of the applicant before he sat down. They brought his cutlery to him on a plate, and understood his need to rearrange things on the table. They knew that he did not want a lemon slice or a straw in his water glass. They served the bread in a basket with a napkin and served the baked potato he always ordered in a way that he liked and that met his needs.
17In September 2013, the applicant and his spouse went to the restaurant and found out that it was under new ownership as a franchise. They met the new manager. That visit and the next few were fine. The applicant noted that in that period, there were people present from the Baton Rouge head office overlooking the operation with the new franchise owner.
18By November 2013, the applicant was not getting the accommodations that he had previously come to expect. He had to explain the situation each time and felt resistance to his requests. He testified that he would ask that his water not have a lemon slice in it and not have a straw, but his requests would be refused. The server would bring him water with a lemon slice and straw and tell him that this was required by the company’s policy.
19This change of approach to the applicant and his spouse came to a head on December 12, 2013, which the applicant said was the fifth visit to the restaurant after the change in ownership.
20The applicant testified that when they arrived, the restaurant was not busy. They were told that their usual table was reserved although no patron sat there all evening. After they were seated they were then ignored for about 45 minutes during which no server came to greet them or take their order. There was then a change in shift and one of the servers who knew the applicant and his requirements started her shift. She took their order but the food did not come for a long time. The applicant told the server that he wanted to speak to the manager. The manager did not come until about 30 minutes later. The applicant testified that when the manager did come the manager was quite belligerent. He started the conversation by saying “What?” He then advised the applicant that none of the staff wanted to serve him because he was “high maintenance”.
21The applicant testified that he tried to explain to the manager that the restaurant had a duty under the Code to accommodate the applicant. He testified that the manager said that he did not need to accommodate the applicant because he was the owner of the business.
22The applicant testified that the manager then said: “Now I know why the police shoot crazy people like you”, or words to that effect.
23The manager then told the applicant that he was required to leave the restaurant, and was not welcome back. The applicant said he wanted to pay for his dinner first. The manager refused to let him pay and said he had to leave.
24The applicant and his spouse left and sat in their car. The applicant testified that he was very upset by the experience, and particularly by the manager’s comment about the police. He said that it felt like he had been assaulted and told that he did not have a right to live. The applicant would not let his spouse drive away because he was worried that the manager might call the police and claim that they had left without paying. He was planning to speak to the police first if they did come but he was worried that the police might be coming to the scene thinking that he was a dangerous person with mental health issues. This was particularly in his mind because of the manager’s comment about the police shooting people and because there had been media attention at that time about that issue. The applicant testified that in the immediate aftermath, he was experiencing “sensory overload” and was feeling panicked. He took some medication but was still not well.
25After some time, the applicant and his spouse drove home. The applicant testified that he was very upset and worried when he got home. He said the effects continued for some months. His need to use rituals increased. He testified that except for visits to his doctor, he did not leave the home for about three months. His doctor did not change his prescriptions but the applicant indicated that he may have increased the number of pills that he took. He gradually started to go out, including visits to restaurants. He said that as a result of the experience, he is reluctant to disclose his needs and finds other ways to cope unless he feels that he can trust the restaurant and its staff. He has not been back to the Baton Rouge restaurant.
Analysis
26Section 1 of the Code provides as follows:
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.
27As set out above, Interim Decision, 2015 HRTO 1069 concluded that because of its failure to engage in the Tribunal’s process, the respondent is deemed to have accepted all of the allegations set out in the Application. The fact that the respondent is deemed to have accepted all of the allegations does not mean that the Tribunal will necessarily accept all of the allegations. As in this case, a hearing is usually held to allow the applicant to testify. The applicant’s allegations cannot be accepted as true unless the applicant’s testimony is credible and reliable.
28In this case, I questioned the applicant at some length about his allegations and his experience at the restaurant. I found the applicant to be very credible and I accept his evidence as reliable. The applicant’s testimony was consistent with the allegations in the Application, including the allegations about what the manager told him. The applicant provided his evidence in a straightforward manner. My impression was that he did not embellish his testimony. The applicant’s testimony about the events and their impact on the applicant were corroborated by his spouse who I also found to be very credible.
29For the purpose of this Decision, the applicant’s allegations are found to be substantiated. Specifically, I find that the respondent refused to accommodate the applicant on more than one occasion, even with respect to very simple accommodations such as not putting a lemon slice in his water. I also find that the respondent ignored the applicant on December 12, 2013 when the applicant went to the restaurant. I accept that this was humiliating for the applicant. I find that the manager of the restaurant told the applicant that the manager had no obligation to accommodate the applicant, and told the applicant that he was required to leave and not welcome to come back. The manager also refused to let the applicant pay for his dinner. I find that the manager also made a profoundly hateful and discriminatory comment to the applicant. I find that the applicant experienced upset and hurt as a result of this interaction. He suffered injury to his dignity, feelings, and self-respect.
Remedy
30Section 45.2 of the Code provides:
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:
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.
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.
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.
31The Tribunal’s approach to the assessment of compensation for injury to dignity, feelings, and self-respect was set out in Arunachalam v. Best Buy Canada, 2010 HRTO 1880. The Tribunal explained that there are several key factors that it considers in ordering remedies, specifically the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. At paragraphs 52 to 54 it stated:
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.
32There have been a number of decided cases in which an applicant was denied access to a restaurant. Most of these are cases where the applicant was denied access because he or she had a service animal or guide dog. These cases are somewhat analogous to the instant case because in those cases the basis for the denial of service was related to the applicant’s disability and the respondents’ refusal to accommodate the disability by allowing the applicant to enter the restaurant. Some of these cases were considered in Sprague v. RioCan Empress Walk Inc., 2015 HRTO 942 and were summarized at paragraphs 69 - 74, as follows:
In 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.
In 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.
In 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.
In 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.
In 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.
Sweet 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.
33The situation in this case is somewhat more complex than most of these cases because here the applicant was initially accommodated. He was able to disclose his disability-related needs and developed a trust that he would be treated with respect. That trust was then undermined, leading to the events on December 12, 2013. Those events included a very hurtful and discriminatory comment by the Manager of the restaurant. The applicant in this case is particularly vulnerable and as a result suffered greater injury as a result of these events. I accept that there was some lasting impact from the experience although, in the absence of corroborating medical evidence, I am unable to accept that the applicant was unable to leave the house for a three month period.
34In consideration of the available evidence and, the factors set out in Arunachalam, and other cases noted above, I conclude that the applicant is entitled to compensation in the amount of $12,000.
35He is also entitled to post-judgement interest on any of this amount that has not been paid within one month of the date of this Decision.
36At the hearing, there was discussion of whether a public interest remedy under section 45.2(1)(3) should be ordered. After some discussion about the options that might be available, the applicant requested that the Tribunal ensure that a copy of this Decision be sent to the Head Office of the Baton Rouge corporation.
37As discussed earlier, after the hearing, the applicant provided information about the legal name and contact information for the respondent. This information corresponds with the information on the website of the head office of Baton Rouge. It therefore appears that by sending a copy of this Decision to the respondent using the legal name and contact information provided by the applicant after the hearing will mean that a copy of the Decision will be sent to the Head Office.
Anonymization
38At the hearing, I advised the applicant that the circumstances of this Application are such that the Tribunal would consider a request from the applicant that the Decision be anonymized so that only his initials would be used in the Decision. This is because the evidence that needs to be set out in the Decision includes highly personal information. The applicant was not aware that this was an option but made the request when I advised him that it was an option. The request was granted. The earlier Interim Decision will also be re-issued using the applicant’s initials.
DECISION
39The respondent discriminated against the applicant by refusing to accommodate the applicant’s disability and by ordering him not to return to the restaurant. The respondent further discriminated against the applicant when the manager made hurtful comments.
40Accordingly, the Tribunal orders as follows:
a. Within thirty days of this Decision, the respondent shall pay $12,000 to the applicant as compensation for the infringement of the Code and injury to his dignity, feelings and self-respect;
b. The respondent shall pay the applicant post-judgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended from the date that is 30 days after the date of this decision
Dated at Toronto, this 18th day of April, 2016.
“Signed By”
Brian Cook Vice-chair