HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allan Clipperton-Boyer
Applicant
-and-
McDonalds Restaurants of Canada Limited
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: Clipperton-Boyer v. McDonalds Restaurants of Canada Limited
APPEARANCES
Allan Clipperton-Boyer, Applicant
Self-represented
McDonalds Restaurants of Canada Limited, Respondent
Robert Bayne, Counsel
Introduction
1This is an Application filed on February 11, 2016 alleging discrimination with respect to the provision of services because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).
2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
3On June 22, 2016, the respondents filed a Request for Order During Proceedings requesting the removal of the corporate respondent`s Regional Vice President, Mr. Victor Rocca (the “personal respondent”), as a party.
4The Tribunal held the summary hearing by conference call on July 6, 2016. The parties attended and I heard submissions as to whether the personal respondent should be removed as a party and whether the Application should be dismissed for no reasonable prospect of success.
Request to Remove the personal Respondent
5Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code [now section 46.3(1) of the Code], a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
7In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the application.
8The respondents submit that there are no allegations in the Application that Mr. Rocca has acted in violation of the Code. At all times Mr. Rocca was acting in his capacity as an executive of the corporate respondent. The respondents argue that the corporate respondent has the ability to respond to or remedy an alleged Code infringement and there is no issue as to the corporate respondent’s deemed or vicarious liability for the actions of the personal respondent. The corporate respondent is not insolvent and it has the authority and capacity to implement the remedies that may be granted by the Tribunal.
9The applicant submits that Mr. Rocca, as an executive of the corporate respondent’s, is the person who can direct full implementation of systemic remedies on a national basis.
10Considering all the circumstances, I find it is not necessary to involve Mr. Rocca as a personal respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
11The respondents’ request to remove Victor Rocca as a personal respondent to the Application is therefore granted. The style of cause is amended accordingly.
Factual Background
12The applicant argues that his poor eyesight, although corrected with lenses, is a disability. He maintains that his eyesight is increasingly poor and he has difficulty seeing the respondent’s menu boards located a few feet behind and above the counters of the respondent’s restaurants across the city. He explains that since the implementation of computer-based menu boards, he finds the names of products barely visible and the prices not at all. Before then, he could see the names and prices of products as the fonts were large enough. The applicant also notes that he attended at one of the respondent’s competitor restaurant and was able to see the menu board perfectly.
13Between October 2014 and April 2016, the applicant estimates that he has purchased approximately 3 to 5 meals a week at the respondent’s restaurants. He maintains that, because he cannot see the menu boards, he must ask for the price and he finds this embarrassing. The applicant observes that, when he asked other customers whether they can see the menu boards, approximately 90% of them admit they cannot. The applicant recognizes that when he asked for assistance from staff about the products and pricing, he received very good service and found the self-service kiosks accessible. The applicant maintains that he has complained numerous times to managers about the menu boards and has been told that changes were not required or forthcoming.
14The applicant submits that since January 1, 2016, the respondent must comply with the sections related to websites under the Accessibility for Ontarians with Disabilities Act, 2005, SO 2005, c. 11 (“AODA”) and its regulations. The applicant is of the view that the menu boards are web-based and the corporate respondent could easily make them more accessible in all of its restaurants. It is the applicant’s contention that the corporate respondent is in violation of the AODA.
15The respondent argues that the Tribunal does not have jurisdiction to entertain alleged violations of the AODA. The corporate respondent further submits that, under the Code, the applicant has not shown that the alleged inaccessibility of the menu boards is linked to a disability. It maintains that if a large number of customers cannot read the menu boards, it is unlikely that the boards’ alleged inaccessibility is linked to disabilities. Finally, the respondent argues that even if the applicant can show that he has a disability preventing him from seeing the menu boards, the respondent reasonably accommodated the applicant by providing the required information and self-serve kiosks in some of its restaurants. The respondent maintains that this position is supported by the applicant’s continued loyalty to the respondent’s restaurants.
DECISION AND ANALYSIS
16For the reasons set out below, I find that the Application has no reasonable prospect of success.
17The nature of a summary hearing has been set out in Dabic v. Windsor Police Services, 2010 HRTO 1994. The focus of this hearing is on whether, assuming all the allegations to be true, there is a reasonable prospect that the applicant can show a link between what happened to him and the prohibited ground of disability.
18The Tribunal has stated on several occasions that it does not have a general power to deal with allegations of unfairness. See for example: Badvi v. Voyageur Transportation, 2011 HRTO 1319 at para. 6; and Watt v. Cambridge (City), 2014 HRTO 218 at para. 6. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory unless there is proof that one or more of these characteristics were a factor in the treatment the applicant experienced. It is readily acknowledged that various experiences of unfairness, not specifically defined as discrimination in the legal sense, can result in significant negative financial and emotional consequences to one degree or another.
19The test the Tribunal applies at this stage is whether the case has no reasonable prospect of success, which involves assuming the applicant’s version of events to be true, absent clear evidence to the contrary.
20The applicant argues that the corporate respondent has not complied with its legal obligations under the AODA. The Tribunal has jurisdiction to enforce the Code but does not have jurisdiction to enforce the AODA. See Bishop v. Hamilton Entertainment and Convention Facilities Inc., 2012 HRTO 708 at para. 19; Thomas v. Sobeys Capital Incorporated, 2014 HRTO 299, at para. 25; and Martel v. Ontario (Community and Social Services), 2014 HRTO 1367 at para. 15.
21The Tribunal’s jurisdiction is to determine whether an applicant has experienced discrimination because of a Code protected ground in respect to services. It is not sufficient that the applicant is a witness to something he believes to be discriminatory; he must establish that he has been adversely impacted by the thing he believes to be discriminatory:
This Tribunal’s only jurisdiction in this proceeding is under s. 1 of the Human Rights Code, and to determine whether either applicant personally has experienced discrimination because of disability in respect of services for which the Town is responsible. In a proceeding under the Code initiated by an individual, the evidence needs to establish an infringement of that specific individual’s rights under the Human Rights Code because of a prohibited ground of discrimination, as opposed to an infringement of the rights of other persons. So the issue is not whether some other person with a particular kind of disability would face barriers or discrimination because of the situations raised in the Applications before me. Rather, the sole issue before me is whether the individual applicants experienced discrimination because of any particular disability they may have. See Freitag v. Penetanguishene (Town), 2013 HRTO 554 at para. 9. See also Freitag v. Penetanguishene (Municipality), 2010 HRTO 1704.
22Based on the particular facts of this case, I find that the Application has no reasonable prospect of success. The applicant admits that he has low vision but it is corrected with prescription lenses. It was his submission that for most people, the menu boards are difficult to see and as such, they are in a similar situation as he is. The applicant has not established a link between the alleged inaccessibility of the menu boards and his disability.
order
23For the reasons outlined above, I order as follows:
a. The personal respondent is removed as a party and the style of cause is amended accordingly;
b. The Application is dismissed.
Dated at Toronto, this 22nd day of July, 2016.
“Signed By”
Josée Bouchard
Vice-chair