Flores v. The Corporation of the Town of Oakville, 2016 HRTO 70

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Guillermo Flores Applicant

-and-

The Corporation of the Town of Oakville and James Ball Respondents

DECISION

Adjudicator: Naomi Overend Date: January 15, 2016 Citation: 2016 HRTO 70 Indexed as: Flores v. Oakville (Town)

APPEARANCES

Guillermo Flores, Applicant Self-represented

The Corporation of the Town of Oakville and James Ball, Respondents Michael P. Fitzgibbon, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities because of disability. A hearing into the merits of this Application is scheduled for April 19 and 20, 2016.

2The parties filed the following three preliminary requests:

1. A Request for Summary Hearing (Form 26);
2. A Request for an Order During Proceedings (Form 10) filed by the applicant to amend the Application;
3. A Request for an Order During Proceedings (Form 10) by the respondents to remove the individual respondent.

3Each of these requests was opposed. The Tribunal held a summary hearing to determine whether it would dismiss all or a portion of the Application on the basis that it had no reasonable prospect of success, and to give the parties an opportunity to provide oral submissions on the respective Requests for Order.

4For the reasons set out below, I find that there is no reasonable prospect that the Application in its current form will succeed and that the applicant’s request to amend should be denied. It is not necessary to address the respondents’ request to remove the individual respondent in light of these findings.

Decision and analysis

Factual Background

5The applicant has been a long-time member of the Glen Abbey Community Centre (“Glen Abbey”), run by the respondent Town of Oakville (“Town”). On December 12, 2014, he slipped and fell in the men’s swimming pool dressing room, injuring his back. He alleges that he had slipped, but not fallen, once before (on an unspecified date), but had not attributed that mishap to any difficulty with the floor tiles.

6The parties are in agreement that the applicant reported the fall to the front desk and an injury report was filled out. The applicant reports that the staff he dealt with that day were sympathetic and one went with him to the dressing room to investigate. He alleges that this person stated that he was already aware of the problem with the tiles in this particular dressing room. Staff advised that they would contact the Aquatics Supervisor, Susan Amaral, and Building Manager, John DaSilva.

7The applicant wrote to the legal department at the Town on December 16, 2014 to tell them about his fall, and the cause, which he attributed to slippery tiles in the dressing room. He described this situation as a danger to seniors and persons with disabilities who use the dressing room. The letter ended with the following note: “I am holding on initiating a lawsuit depending on the establishing the severity and long term effect of my injury.”

8This letter was referred to James Ball, the Risk Management Coordinator/Adjuster for the Town (and also the named personal respondent). Mr. Ball responded by email that day that he would be investigating the applicant’s complaint, but that, with the Christmas holidays, he would likely not conclude the investigation until early January. The subject matter of Mr. Ball’s email was “Glen Abbey Slip and Fall.”

9On December 31, 2014, the applicant sent a demand letter to the respondent’s legal department, he which he offered to settle the matter out of court for $30,000 and a free membership for a year. The applicant referred to the cause of action as “negligence.”

10Mr. Ball responded by email on January 9, 2015. He advised that the Town was “not inclined to consider any type of payment” and also denied any negligence on the part of the Town. Specifically, he stated that all the tiles in the change room were non-slip.

11The applicant wrote back to Mr. Ball on January 12, 2015, disputing the Town’s claim that there was no safety concern. He closes this letter with the following paragraph:

You may like to consider that accommodating my disability is not unique to my needs but also to the many with physical disabilities using the pool, such as members of the group “The Strokers.” Further, increasing our safety will improve the safety of the public in general at the same time.

12This is the first reference the applicant makes to his disability, although he did not specify the nature of his disability, or the needs associated with it. In a subsequent letter, dated January 22, 2015, to Kathy Wyatt, Manager of “Purchasing and Risk Management, Financial Planning” with the Town, the applicant specifies that he is a person with a “walking disability.” He notes that the tiles in question are a “serious hazard” to him when wet, but notes again that the “public in general” is at risk of injury.

13Gord Lalonde, the Commissioner, Corporate Services, responded to this letter on February 5, 2015. Mr. Lalonde states in this letter that the Town investigated the applicant’s concerns (which included allegations of a cover-up as well as hazardous floor tiles), and states that the investigation revealed that “slip resistant” and “non-slip” tiles were installed in the dressing rooms at Glen Abbey. He concludes this letter by noting that “[t]his matter is now closed.”

14The Application, which the applicant filed on January 26, 2015, was served on the respondents on February 11, 2015. Although the applicant wrote one final letter to Mr. Lalonde about his “flawed investigation” on February 11, 2015, all further communication from the respondents has been prepared by their counsel in the context of this process.

Analysis

15The question raised in this summary hearing is whether the applicant’s allegations constitute discrimination under the Code. Section 1 of the Code provides that every “person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of …. disability.” The applicant’s allegations do not constitute direct discrimination because he does not allege, for example, that he was denied access to the respondent’s goods and facilities because he had a disability.

16The applicant submits that the situation he found himself in is analogous to the failure to provide level access to someone using a wheelchair. Although the applicant did not rely upon s. 11 of the Code, that is the applicable section for his claim. Section 11(1) states:

A right of a person under Part 1 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; …

17In answer to my question at the summary hearing regarding the nature of his disability, the applicant specified that he has a foot deformity caused by having polio as a child. Although he can walk, he states he has greater difficulty standing and walking on slippery surfaces. The applicant appears to be a member of a group identified by a prohibited ground (in this case disability).

18In order to establish a claim of constructive discrimination, the applicant must also prove that a requirement, qualification or factor exists which results in the exclusion, restriction or preference of persons with disabilities from the services/facilities operated by the respondent. It is not clear to me that tiling in the respondent’s premises is a “requirement, qualification or factor”. However, for the purposes of this decision, I will assume that the type of tiling in the dressing room is a “factor” as that term is used in s. 11. The issue that I must address is whether the tiling results in the “exclusion” or “restriction” of the group of persons to which the applicant belongs.

19The problem with the applicant’s position is that a slippery floor does not just pose a problem for a restricted group of persons protected by the Code, but is a hazard for everyone. The applicant acknowledges as much in his correspondence to the respondents. Indeed, in his oral submissions at the summary hearing, he said he observed a small child fall and someone with no disability almost fall in the same area where he fell.

20As a general rule, hazardous situations – such as icy sidewalks, speeding cars or broken jars of pickles on the floor – are likely to pose a greater risk to those with pre-existing disabilities, but this not mean that these situations are also discriminatory. Discrimination is not established simply by showing a negative impact on a claimant who is a member of a protected group. There must be an actual link between membership and the disadvantaging treatment. It would dilute the protections found in the Code if, by virtue of their membership in a protected group, such persons could turn what are, at their core, negligence claims into human rights violations.

21In this case, there is no link between the tiling used by the respondent and the applicant’s disability. It is not analogous to a building that does not have ramp. In that case, persons using wheelchairs are not able to access the building whereas persons without disabilities can. Here, every member of the community centre would be impacted by slippery tiles and at risk of falling as a result.

22When the applicant first wrote to the Town about his fall, he correctly identified that his cause of action lay in negligence. He sought monetary damages for the injuries he alleged were caused by his fall. He also seeks such damages in his Application. The Tribunal, however, has no authority to award such damages in the context of the facts he alleges.

23For the reasons set out above, the facts alleged in the Application do not constitute discrimination.

Request to Amend

24The applicant filed a Request for an Order During Proceedings (Form 10) to amend his Application after the initial Notice of Hearing was sent out. The respondents oppose this Request.

25The facts on which the applicant wishes to rely are as follows: On January 19, 2015, four days after his annual membership had expired, he attended Glen Abbey and asked for a one-month rebate on his previous year’s membership because he had not been able to fully use the respondent’s facilities after the incident giving rise to this Application. He states that he was offered a two-week reduction to reflect the period in January when he did not use the facilities at all, but that for technical reasons was told this would have to be taken as a rebate when he renewed his membership.

26The applicant further alleges that, when he was cleared by his doctor to resume his exercise program, he returned to Glen Abbey on February 13, 2015 to renew his membership. He was not offered the two-week rebate at this time, however, as the person he had met the previous month told him that he had since reviewed the rules and they did not allow for this rebate. He argues that this is reprisal because by this point, the respondent knew of his Application.

27The applicant also argues that the Town’s rule of requiring a rebate request to be accompanied by a medical note, within 30 days of the member being unable to attend by reason of disability, is also discriminatory. It is not clear whether this requirement applied to the applicant in light of the sequence of events he sets out in his Request to amend.

28In any event, the allegations of reprisal and discrimination, based on what the applicant says is a flawed rebate policy, can stand alone from the original Application and it does not make sense to include them in this process. The allegations, as currently particularized, are confusing. The first step would be to require the applicant to clarify them. Then the respondent(s) would then have to file a Response (because the materials filed thus far by the respondents do not substantively address the allegations), and the applicant given a chance to file a Reply.

29Essentially, there would be no time savings by tacking this set of allegations on to the existing process. If the applicant is, in fact, interested in pursuing these allegations, it would be in the interest of justice to require him to file a new Application. His Request to amend is denied.

order

30In summary, I make the following orders:

a. The applicant’s request to amend his Application is denied; and

b. The Application is dismissed as having no reasonable prospect of success and the April 19 and 20, 2016 hearing dates vacated.