Racette v. 2419778 Ontario Inc., 2017 HRTO 1380

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Racette

Applicant

-and-

2419778 Ontario Inc. – La Rose Coin Laundry

Respondent

DECISION

Adjudicator: Brian Cook

Date: October 17, 2017

Citation: 2017 HRTO 1380

Indexed as: Racette v. 2419778 Ontario Inc.

APPEARANCES

Michael Racette, Applicant

Self-represented

La Rose Coin Laundry, Respondent

A. Pichquin, Paralegal

1This Application alleges discrimination in respect of services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The applicant is a person with a disability that results in restricted mobility. He testified that he sometimes requires wheelchair and at other times he requires crutches or a cane. The respondent operates a laundromat. The applicant states that the respondent discriminated against him when it did not have an accessible washroom that he could use when he was at the Laundromat doing his laundry.

3The Application was heard at the Tribunal on September 5, 2017. I heard evidence from the applicant and from Lanthithu Nguyen. Ms. Nguyen testified that she is the sole owner of the numbered company that operates the La Rose Laundromat (the “Laundromat”). I heard submissions from the applicant and from the respondent’s representative.

4As discussed below, there are several deficiencies in the applicant’s case. These relate primarily to the fact that most of the allegations the applicant made at the hearing were not raised in the Application and so were not identified as issues the respondent needed to respond to prior to the hearing. In addition, the applicant failed to present evidence or coherent arguments in support of the allegations he did make.

5At the outset of the hearing, the applicant identified the fact that he might have difficulty in making out his case because he was heavily medicated. He said he did not want an adjournment and did not ask for any other accommodation except for understanding from the respondent and me. During the hearing, I engaged with the applicant to ensure that, to the extent possible, I understood his position and arguments.

BACKGROUND

6Ms. Nugyen testified that the business opened on May 3, 2015. Previously, there had been a restaurant at the location. She took over the property in about February 2015 and started a renovation to accommodate the Laundromat. The restaurant had a washroom which was located in the basement. The respondent kept the washroom in the basement when the renovations were done.

7The applicant lives in a building that is near the Laundromat. He estimated that it is about 200 yards away. He said that he visited the Laundromat in May 2015 when it opened and had a lengthy conversation with a man who he understood was the owner of the Laundromat. He believes that he learned in that conversation that there was a main floor space that included a washroom.

8On or about November 8, 2015, he came again to the Laundromat to do some laundry. He drove to the location and was able to park in a disabled parking spot right outside the door. On that day he was using a cane. The Laundromat is in a strip mall consisting of about six small businesses. When his laundry was drying, he asked Ms. Nguyen if he could use a washroom. She told him that there was a washroom in the basement. He told her he could not get to it because of the stairs. She told him that the Pizza Pizza location in the strip mall had a ground floor washroom and perhaps he could use it. He went to the Pizza Pizza but was told that the washroom was only for patrons. The applicant was by then desperate and had no option but to urinate in the parking lot. He tried to mask what he was doing but was observed by a passerby and also by people sitting at a café. They said things to him and gave him looks. He felt humiliated and embarrassed. He went back and collected his laundry and did not say anything to Ms. Nguyen.

9About a week later, he returned to the Laundromat to discuss what had happened. At that time, based on his recollection of the discussion at the Laundromat in May and on something a neighbour said, the applicant believed that there was a main floor washroom for the respondent’s personal use. He put this to Ms. Nguyen but she told him this was not the case, and that there was only one washroom on the premises, which was in the basement. The applicant testified that the discussion became “heated”. The applicant testified that at the conclusion of the heated discussion, he came to understood that there was no main floor washroom.

10The applicant filed the Application with the Tribunal on July 29, 2016, almost nine months after the events on November 8, 2015. In the Application, the applicant described the events on November 8, 2015. He alleged that there was a main floor washroom, stating “The laundry has a main floor washroom disabled can use they won’t open it up to us.”

11This was the allegation that Ms. Nguyen responded to when she prepared her Response to the Application. In her detailed Response Ms. Nguyen outlined the history of the encounters with the applicant. She said that a few weeks after the events of November 8, 2015, the applicant confronted her with the accusation that she did in fact have a main floor washroom and he did not believe her when she told him there was no main floor washroom. She noted that the applicant had not told her that he needed a washroom urgently and that if he had, she would have offered to help him down the stairs or tried to find some other solution. She also did not know at the time that the Pizza Pizza store would not let him use their washroom because he was not a customer and nor did she know that he did not have any money to buy a drink so he could be a customer. She said that if she had known, she would have given him some money to buy a drink.

12The respondent prepared for the hearing on the understanding that the issue was whether or not she had a main floor washroom. She brought the engineering architectural drawings and photos of various areas of the Laundromat including a private office area behind the counter inside the door, which is where the applicant believed the main floor washroom was located. She retained a paralegal to represent her in the hearing and he too understood that the issue was whether there was in fact a main floor washroom.

13At the hearing, the respondent testified that there is not a main floor washroom in the Laundromat. The applicant testified that after he returned to the Laundromat a few weeks after the events on November 8, 2015, he understood that there was no main floor washroom. The applicant did not explain why he then filed the Application alleging that there was a main floor washroom.

14After this clarification, the applicant submitted that the respondent should have an accessible main floor washroom. He said that the basis for this is that the respondent undertook a major renovation in converting the premises from a restaurant to a Laundromat and provisions of the Accessibility for Ontarians with Disabilities Act, and a Regulation to that Act, require that after 2015, any service provider must include an accessible washroom as part of any major renovation. In the alternative, he argued that the respondent should be required to not let anyone use the downstairs washroom.

15It is to be noted that these are entirely different arguments and allegations than those set out in the Application.

16At the hearing, the applicant produced an extract from the Integrated Accessibility Standards, O. Reg. 191/11, (“the Regulation”) a Regulation under the Accessibility for Ontarians With Disabilities Act 2005, SO 2005, c 11 (“AODA”). The extract includes sections 1, 2, 3 and 80.45. The latter is part of the Regulation called Customer Service Standards. None of the sections of the Regulation provided by the applicant say anything about accessible washrooms.

17At the hearing, I suggested that it would be appropriate for me to review the entire Customer Service Standards section of the Regulation (Part IV.2), and I have now done so.

ANALYSIS

18In regard to the AODA, the applicant referred to the Integrated Accessibility Standards, O. Reg. 191/11, (“the Regulation”) a Regulation under the AODA. The applicant submitted that Under Part IV of the Regulation, the respondent is required to have a barrier free accessible washroom. The extract of the Regulation the applicant submitted did not include Part IV.

19I have reviewed the Regulation and I do not see how the AODA or the Regulation requires the respondent to have an accessible washroom. Even if the AODA or a Regulation to it does require a Laundromat to have an accessible washroom, this Tribunal does not have jurisdiction to apply the AODA or its Regulations. The AODA establishes a separate system for how the AODA is applied and enforced.

20The applicant suggested that provisions of the Ontario Building Code (the “Building Code”) might also require the Laundromat to have an accessible washroom. The basis for this is that there was a major renovation. I note that under the Building Code there are accessibility requirements following a major renovation, but these apply to larger buildings and not to spaces that are the size of the respondent’s business. In any event, this Tribunal also has no jurisdiction to enforce the Building Code.

21This Tribunal only has the jurisdiction to Application the Human Rights Code. Section 1 of the Code provides:

1. 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.

22Section 11 provides:

11. (1) A right of a person under Part I 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; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

23Section 17 provides:

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

24Under the Code, a provider of goods, services or facilities may have to accommodate the needs of a person to allow the person to access the goods, services or facilities unless the accommodation would result in undue hardship.

25In this case, the service that the respondent provides is a laundromat service.

26The applicant was able to access the service. There is no barrier at the door to the premises. Although there is no automatic door opener, Ms. Nguyen is present and the applicant agrees that she helped him with the door and also in getting his laundry to the machines.

27There is no general requirement that a Laundromat have a washroom for the use of its customers. This is true of most small retail businesses. Customers of those businesses do not expect the business to provide access to a washroom as part of the operation of the business. These businesses, like the Laundromat in this case, may well have a washroom on the premises for the use of the owners or staff of the business. The business may allow customers to use the washroom but they are not required to do so.

28In the instant case, there is one washroom on the premises. Primarily, this is for Ms. Nguyen’s personal use. She also allows customers to use it but she is not obliged to do so.

29The applicant submits that since the respondent does allow its customers to use the washroom, it must be accessible because otherwise there is not equal access. He submits that the respondent is required to construct an accessible washroom or make the existing basement washroom accessible, unless she can show that this would result in undue hardship. He submits that in the alternative, the respondent should not allow any customer to use the washroom.

30As noted, the applicant was able to access the laundry service that the respondent provides. The applicant does not require a washroom to do his laundry, any more than any other customer. When the respondent did the renovation, she was not legally obliged to include an accessible washroom as part of the renovation and she is not legally obliged to have any washroom available for the use of customers.

31It appears that the suggestion that the respondent is required to have an accessible washroom is that she allows other customers to use her own washroom which the applicant cannot access. The applicant appears to agree that there would be no Code-related issue if the respondent did not allow other customers to use her washroom. This is why he proposes that the respondent be ordered to not allow customers to use her washroom.

32In my view, this would be a very perverse result. It would also not help the applicant in any way or address any disability-related need he might have related to access to the Laundromat.

33It appears to me that the respondent tried to accommodate the applicant’s needs when they arose on November 8, 2015. She told him about an accessible washroom that was three or four stores away at the Pizza Pizza location in the strip mall. The respondent concedes that she did not know if the applicant would be allowed to access the washroom because the issue of a disabled customer who required a washroom had never previously come up. She testified that if the applicant had returned to tell her that he needed money to buy a drink at the Pizza Pizza so that he could access the washroom she would have given him some money. This accommodation did not happen because the applicant could not wait to relieve himself. The applicant indicated that this urgency was related to diabetes but he did not explain this relationship and in and in any event, he did not tell the respondent that his need was a desperate as it apparently was.

34As noted earlier, all the arguments about the application of the AODA and the theory that the respondent is obliged to have an accessible washroom because of the Code, arose only at the hearing. These matters were not raised in the Application itself, which concerned only the allegation that the respondent did in fact have a main floor washroom, even though he said he knew at the time he filed the Application that this was not the case. He did not subsequently seek to amend the Application.

35At the hearing, the applicant alluded to the AODA and the Service Standard Regulation, but provided no coherent explanation about the effect of these provisions in relation to this case, or why they were applicable at all. The Code-related argument was essentially that the respondent must provide an accessible washroom because she allows customers to use her washroom. Since this was not identified by the applicant in advance of the hearing, the respondent had no opportunity to properly respond.

36In the human rights process under the Code, the applicant bears the burden of proving the allegations of discrimination. For the reasons set out above, and on the basis of the evidence and submissions before me in this case, I find that the applicant has failed to do this in this case and the allegations of discrimination are dismissed.

Reprisal

37The applicant indicated that he feels that people in his building and neighbourhood feel negatively about him because he filed the Application. In her Response, the respondent included statements from customers about the respondent’s business. These indicate that customers feel very positively about the business and the respondent and that Ms. Nguyen has assisted people, including people with disabilities. None of the statements mention the applicant but Ms. Nguyen obviously told people about the Application when she solicited the supportive letters.

38The applicant suggested that he has been subject to reprisal for filing the Application, contrary to section 8 of the Code, which provides:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

39An application under the Code starts a legal proceeding. A respondent is entitled to defend itself against allegations made in the Application. There is no requirement that the fact that an Application has been filed must remain secret. While the applicant has chosen to not return to the Laundromat, the respondent has not done or said anything to suggest he is not welcome to return. There is no evidence to indicate that the respondent has done anything to reprise against the applicant.

40The applicant had not raised the allegation of reprisal before the hearing. At the hearing he provided no evidence to substantiate his belief that he has experienced reprisal for filing the Application.

41I find that the available evidence does not establish that the applicant has experienced reprisal contrary to section 8.

DECISION

42The Application is dismissed.