Bourdeau v. Board of Management of the Toronto Zoo, 2017 HRTO 1149

Human Rights Tribunal of Ontario

B E T W E E N:

Karoline Bourdeau Applicant

-and-

Board of Management of the Toronto Zoo Respondent

A N D B E T W E E N:

Karoline Bourdeau Applicant

-and-

Catholic Cemeteries & Funeral Services – Archdiocese of Toronto Respondent

A N D B E T W E E N:

Karoline Bourdeau Applicant

-and-

ME to WE Trips Inc. Respondent

A N D B E T W E E N:

Karoline Bourdeau Applicant

-and-

F8N Enterprises Operating as Lundy’s Motel, Advantage Inn, The Rex Motel at Niagara Falls Inc., Niagara Falls Courtside Inn, 2405800 Ontario Ltd. – Operating as Emerald Retirement Residence, Falcon Inn, Comfort Inn Lundy’s Lane and Kings Inn Near the Falls Respondents

DECISION

Adjudicator: David Muir Date: September 5, 2017 Citation: 2017 HRTO 1149 Indexed As: Bourdeau v. Board of Management of the Toronto Zoo

1These are four Applications alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In Tribunal Files 2017-26583-I, 2017-26584-I, and 2016-26459-I, the applicant alleges discrimination in employment, and in 2016-24498-I, discrimination in the provision of goods and services.

2These are four of a number of Applications which the applicant has filed which raise a similar issue. The applicant alleges that she is legally blind. In the employment cases, the applicant alleges that she is excluded from applying for positions because the job descriptions include a requirement for a valid driver’s license, which the applicant states she cannot obtain. In these cases the applicant did not apply for the advertised position.

3Similarly, in 2016-24498-I, the applicant alleges that she is excluded from seeking accommodation with these respondents because of no pet policies. The applicant uses a guide dog. The applicant does not appear to assert that she made any attempt to seek accommodation for any disability-related need from any of the respondents.

4The applicant has filed a number of Applications making substantially the same claim. In a recent decision, 2017 HRTO 936, the Tribunal dismissed a similar Application. The Tribunal concluded at paras. 15 to 17:

The threshold issue in this case is whether the requirement to have a driver’s licence had the effect of excluding the applicant from employment as the respondent’s Director of Services and Supports. That question cannot be answered because the applicant did not apply for the position. The respondent was never put in the position of having to consider whether the applicant’s disability could be accommodated, assuming she was qualified for the position. The most that can be said is that the driver’s licence requirement might have excluded the applicant from obtaining this position. For the purposes of a human rights analysis there are no facts at all – nothing happened. Consequently, there is no evidence that the applicant suffered any exclusion or adverse impact because of the requirement to have a driver’s licence, without which this Application has no reasonable prospect of success. The Tribunal’s jurisdiction does not include theoretical breaches of the Code.

In coming to this conclusion, I have rejected the applicant’s assertion that she was “ineligible to apply” because she does not have a driver’s licence. The applicant pointed to no evidence or any evidence that may be reasonably available to the applicant that indicated that the respondent would not consider candidates without drivers’ licences. The only evidence on this point is that the respondent explicitly invited people with disabilities to apply for the position and indicated that it would work with candidates with disabilities to accommodate their needs. In these circumstances, I find that the applicant has no reasonable prospect of showing that she was unable to even apply for the position.

The Tribunal has also found that no adverse treatment arises in hiring situations when the applicant does not have a bona fide interest in securing the position in question. See Cenanovic v. 2332489 Ontario Inc., 2014 HRTO 1811. In this case, there are strong indications that the applicant was not actually interested in employment with the respondent. Unlike in Cenanovic, the applicant did not even apply for the position. The applicant’s submissions revealed that she has little idea of the actual functions of the Director of Services and Supports and, with all due respect, that she does not have qualifications that would make her a serious candidate for the position. In these circumstances, the applicant has no reasonable prospect of demonstrating that she had a bona fide interest in the Director of Services and Supports position. Rather it seems that the applicant seized upon a requirement in the job posting as an opportunity to file an Application to this Tribunal.

5In Case Assessment Directions (CADs) issued on August 1 and 3, 2017, the Tribunal directed that the applicant deliver and file submissions within 14 days of the date of the CAD addressing the conclusions in Decision 2017 HRTO 936 and explaining how the circumstances of any of these Applications are different, failing which these Applications may be dismissed as abandoned.

6The applicant did not respond to these Directions and has made no other contact with the Tribunal.

7In the circumstances the applicant is deemed to have abandoned these Applications and they are all dismissed.

8The summary hearing in 2016-24498-I scheduled to take place on Friday, September 8, 2017 is cancelled.