HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ruth Woitowicz
Applicant
-and-
Wexford BIA, Mayor John Tory and Michael Thompson
Respondents
DECISION
Adjudicator: Dawn J. Kershaw
Date: October 26, 2017
Citation: 2017 HRTO 1416
Indexed as: Woitowicz v. Wexford BIA
APPEARANCES
Ruth Woitowicz, Applicant
Ms. Agar, Representative
Wexford BIA, Mayor John Tory and Michael Thompson, Respondents
Antonella Ceddia, Counsel
Introduction
1The applicant filed an Application with respect to services, alleging that the respondents discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant alleges the respondents discriminated against her by failing to accommodate her disability when they failed to move the Taste of Lawrence festival away from a location below her apartment when she complained that the noise adversely affected her on the basis of her disability.
3By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that the Tribunal does not have jurisdiction to hear the Application because the alleged incidents do not fall within the Code areas of “services, goods and facilities”. More particularly, the CAD stated that the applicant must demonstrate how in hosting the Taste of Lawrence festival, the respondents are providing a service, good or facility to the applicant, who lives in the area of the festival.
4Section 1 of the Code states:
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.
5As explained more fully below, I find that the Application must be dismissed on the basis that there is no service relationship between the applicant and the respondents pursuant to the Code.
6As the Tribunal stated in the CAD, the Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' alleged adverse treatment falls within one of the social areas covered by the Code. The Tribunal does not have the power to deal with or remedy general allegations of unfairness and can only address allegations that fall within the Tribunal’s jurisdiction. The Tribunal cannot address allegations of unfairness that are unrelated to the Code.
7Having set out the basic framework for determining whether an application should be dismissed because it does not fall within one of the social areas covered by the Code, I now turn to the facts of this particular case. In reaching my decision, I have considered the parties’ oral and written submissions. Because of my finding, I need not address the issue of whether the individual respondents should be removed as parties to the proceeding.
Parties’ Submissions
8The applicant submits that by holding a public festival the respondents are providing a service to the community. Therefore they are providing a service to her as a member of the community. She submits that the service is being provided to her whether she wants it or not because the music takes place on a bandstand below her apartment. The applicant submits she has a disability of environmental sensitivities, which includes noise, and that the respondents failed to accommodate her disability by moving the bandstand away from her apartment so that she did not have hear the music and feel the vibration from the music in her home.
9The applicant further submits that the respondents advised her that they moved the festival to accommodate those with physical disabilities, and that by acknowledging that they have acknowledged they are providing a service.
10The respondents for their part submit there is no service relationship between the applicant and the respondents because to constitute a service there must be a transfer of a benefit from one person to another. In this case that would mean that there was a transfer of a benefit from the respondents as a service provider to the applicant, which they deny. The respondents point to the applicant’s admission in her written submissions that she gets no benefit from the alleged service. In addition, they submit that the applicant makes no claim that she was prevented from accessing the alleged service, which she also later terms a facility, and in fact she admits she did not try to access the festival. She asserts she did not need to because it was so noisy that it was as if it happened in her apartment.
11The respondents further submit that the respondent Wexford BIA is a business organization that provides services to the businesses it serves, not to the general public, and as such it provided no services to the applicant.
12Finally, the respondents submit that the effect of noise on a person is not a service within the meaning of the Code.
Findings
13The mere fact that the respondents, or any one of the respondents, held a festival on the street below the applicant’s apartment is not sufficient to establish that the respondents were providing a service to the applicant. It is not enough to assert that because the festival was held in public that it constituted a service to the applicant. In this particular case, the applicant conceded she did not try to access the festival, and she was not hampered in her ability to access it. As the Tribunal said in Cooper v. Pinkofskys, 2008 HRTO 390 at paras. 10 and 11, this was an interaction between two parties, but a mere interaction between parties does not constitute a service relationship. Given her admission that she neither wanted, nor had any inclination to access, the service, there was no benefit conferred on her by the respondents.
14The applicant’s allegation that she can ground her claim in facilities likewise fails. Even if the bandstand or the festival itself could be considered facilities, the applicant did not try to access these, nor was she hampered in her ability to do so. As such, the applicant fails to bring her claim within the ambit of the Code by failing to establish that she was in a service relationship with the respondents, or that she was prevented from accessing a facility if in fact the bandstand or the festival could be considered a facility.
Order
15For the above reasons, the Application is dismissed.
Dated at Toronto, this 26th day of October, 2017.
“Signed by”
Dawn J. Kershaw
Vice-chair```