LaBerge v. The Corporation of the City of Guelph (Guelph Transit Operations), 2017 HRTO 1435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eileen LaBerge

Applicant

-and-

The Corporation of the City of Guelph (Guelph Transit Operations)

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: October 31, 2017

Citation: 2017 HRTO 1435

Indexed as: LaBerge v. Guelph (City)

APPEARANCES

Eileen LaBerge, Applicant

Self-represented

The Corporation of the City of Guelph (Guelph Transit Operations), Respondent

Jeffrey Aitkens, Counsel

Introduction

1This is an Application filed under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging the respondent contravened the terms of the settlement reached between the parties.

2On July 22, 2015, the parties entered into Minutes of Settlement (“MOS”) that settled an Application in which the applicant alleged that the respondent discriminated against her on the basis of disability and age through incidents that occurred on its City buses. It was clear from the applicant’s submissions in this hearing that her main complaint is that she has had altercations with other passengers on City buses because those passengers had strollers and wanted her to move out of the priority seating she requires so they could sit there with their strollers.

3The applicant alleges the respondent contravened the terms of the MOS by failing to:

a. completely install revised interior signage on all conventional City buses by end of 2015;

b. conduct a public awareness campaign relating to priority seating on conventional City buses, specifically to update the website by the end of 2015 & update marketing materials by the end of June 2016;

c. carry out refresher training for City bus operators with respect to priority seating by the end of March 2016;

d. forward to the Guelph Tribune immediately, for publication in its first available edition, a notice reminding the public that disabled passengers have higher claim to priority seating on buses than other passengers.

4The parties attended an in-person hearing and made submissions.

THE LAW

5Subsections 45.9(3) and (8) of the Code state, as follows:

If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8).

If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention. 2006, c. 30, s. 5.

parties’ submissions

Signage

6The applicant submits that the respondent was to install revised signage in all its conventional buses by the end of 2015. The applicant submits the new signage was not installed until October 20, 2016.

7The applicant further submits that the new signage in the buses does not say three-wheeled strollers are not allowed on buses, nor does it advise of the permissible dimensions for strollers. She submits the signage was to be altered to show the sizes of items, including three wheeled and double strollers that are too large to pass through the priority seating area to the courtesy seating area.

8The respondent for its part submits that the signage has all now been installed, but admits it was not completed by the deadline in the MOS. It submits the respondent had a fairly significant staff turnover take place since the MOS were signed, which made it difficult to implement organizational-wide changes. The respondent could not clarify by when it was completed although it appears from the Response that the replacement of its rack cards was underway as of the date of filing the Response on August 30, 2016, and was complete by the time of this hearing on August 17, 2017. It submits that the prior signage with respect to priority and courtesy seating remained in buses through 2015 and 2016.

9It is clear from the submissions that the respondent did not fulfill this term of the MOS. I will address remedy after dealing with the other allegations of breaches of the MOS.

Public Awareness Campaign

10The MOS state the respondent was to conduct a public awareness campaign relating to priority seating on conventional City buses, specifically to update its website by the end of 2015 and update its marketing materials by the end of June 2016, but the applicant alleges it failed to do so.

11The applicant admits she does not use the respondent’s website. She acknowledges there was information in the pocket behind the bus driver.

12The applicant submits that if the respondent had done the public awareness campaign she would not have been threatened while the bus drivers did nothing to assist her.

13While she submits the only thing the respondent did was put one ad in the Guelph Tribune, she admits that the respondent put information at the university, but asserts that it put nothing at the terminal or in the north end of the city.

14The respondent submits that the wording of the MOS is ambiguous in that they did not outline specifically the breadth and scope of the public awareness campaign. The respondent further submits that what it did shows it fulfilled the reasonable intent of the respondent to carry out the MOS. Further, the respondent points out that the MOS include a term that the applicant does not get the final say over the campaign materials.

15The respondent submits that given the wording in the MOS the campaign there was no indication on how broad the campaign was to be. However, it submits it made reasonable efforts to conduct a public awareness campaign by including language in its information that states that not all disabilities are visible; by putting the information in bus shelters on a rotating basis when there is no paid advertising; by including graphics about priority seating at the university; by updating its transit brochures; and by updating its website to include new graphics with respect to priority and courtesy seating, in addition to the language that says not all disabilities are visible, which was included after the MOS were signed.

16The respondent submits it appears the applicant is saying she was not satisfied with the extent of the campaign not the absence of one.

17In my view, the respondent complied with the intent of the MOS with respect to a public awareness campaign, given the actions it took, including using language in its website and in written materials that resulted from the applicant’s advocacy efforts. I find no breach of this term of the MOS.

Refresher Training for Drivers

18The MOS provides that the respondent was to carry out refresher training for City bus operators with respect to priority seating by the end of March 2016, which the applicant submits it did not do.

19In her view, this did not occur because if it had people would not have continued to harass her on City buses while she was seated in the priority seating.

20The respondent for its part admits it did not comply with this term by the end of March 2016. It submits that when the MOS were signed, its drivers had already done customer service training and AODA training, and that the second wave of training was to be done after the MOS were signed. Due to organizational-wide change there was no consistent leadership that would enable it to get its more than 150 personnel trained as required. The respondent admits that although it tried, it did not meet its deadline.

21The respondent submits that at present, its training is done by Michael Feren, who is the training coordinator for the respondent. The respondent submits that two new modules were added as mandatory training for all drivers, including upgraded AODA training and a new module called May I Help You? This includes self-study and a questionnaire to prove that the drivers have read and understood the training. The respondent submits that the training material trains drivers to advise that they cannot always tell if someone has disability, and they are trained not to ask questions.

22The respondent submits that the applicant’s submissions appear largely to be focused on strollers and whether they can be taken on buses, an issue that was not specifically addressed in the MOS. The respondent submits that its focus is on the fact that not all disabilities are visible, and that people who sit in priority seats may not have a visible disability. The respondent points out that in addition to this language being in its signage because of the applicant’s advocacy, it also is included on its website and its driver training.

23The respondent submits that Mr. Feren confirmed with him that of its 170 drivers only 7 have not yet received the AODA and the May I Help You training, and those 7 are those who are off work on long-term disability.

24Finally, the respondent submits that it is not evidence of a breach of the MOS that the applicant still experiences incidents involving other passengers on the bus, because this is not evidence that the drivers were not trained.

25I find that the respondent breached this term of the MOS by not having its drivers trained by the end of March 2016. I do not find a breach with respect to the 7 drivers who have not done the training in light of the fact that they are away from work on long-term disability.

Guelph Tribune Notice

26The MOS provided that the respondent would forward to the Guelph Tribune immediately, to be published in its first available edition of the paper, a notice reminding the public that disabled passengers have a higher claim to priority seating on buses than other passengers.

27The applicant alleged in the Application that the ad appeared only once on July 30, 2015. At the hearing she agreed that this was the first available edition of the paper but took exception to the notice being published only one time.

28The respondent submits the notice was published within 8 days of the signing of the MOS in the Guelph Tribune, which is a weekly publication, and this was the nearest edition. It further submits the MOS contemplate “a” notice to the Tribune which connotes one, and the respondent complied.

29In light of the applicant’s acknowledgement that the notice was published in July 2015, which was the first available edition, and the fact that the MOS contemplate “a” notice, I find no breach of this term of the MOS.

remedy

30The applicant did not include any information with respect to remedy in her Application. When asked at the hearing what she wishes the Tribunal to order by way of remedy if a breach or breaches of the MOS were found, she states that the Tribunal should tell the respondent not to aid and abet criminal behaviour. She also submits that she continues to have medical expenses for her leg. Finally, she asks that the respondent compensate the Tribunal for its time.

31The respondent submits that if the Tribunal finds there is a contravention, and in light of the fact that the applicant is not asking for financial remedy, the Tribunal’s remedy should be to try to put the applicant in the position she would have been in if not for the contravention. On the respondent’s submission, it complied with the intention of the MOS and the applicant’s advocacy efforts were already implemented, albeit not in time.

32The impact of the breaches on the applicant is the key to determining the appropriate remedy. In my view, subsection 45.9(8) of the Code gives the Tribunal broad power to remedy contraventions of settlements, in that it may make “any order that it considers appropriate to remedy the contravention.” As noted in Matos v. Transplay, 2010 HRTO 2527 at para. 17, “the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention.” See also Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867; Francis v. Toronto Police Services Board, 2011 HRTO 2018 and Vashishtha v. AA Cars @ Truck Rentals, 2014 HRTO 865. However, as indicated, in this case the respondent has now complied with the terms of the MOS, and the applicant is not asking for a financial remedy, other than for the Tribunal, which I have no power to order.

33It was clear from the applicant’s submissions that she is focused on the fact that she continues to have negative interactions with other bus passengers while she is seated in the priority seating section, which impacts her greatly. The difficulty is that no matter how much training the respondent does for its drivers or how often or much it tries to educate the public with respect to priority seating, it will not be able to control the behaviour of its passengers, other than to ensure that its drivers utilize the training they receive with respect to advising those passengers that not all disabilities are visible ones.

34The applicant is not asking that I order any financial compensation for her, and I do not have the power to order the respondent to cease, in the applicant’s words, aiding and abetting criminal behaviour.

35In my view at this stage, the only other outstanding matter is that 7 employees have not yet been trained because they are, or at least were at the time of this hearing, off work on long-term disability. Those employees should take the required training as set out in the MOS within six months of their return to work.

order

36The respondent is ordered to:

a. Within 6 months of their return to work, train the 7 employees who have not yet been trained as required in the MOS; and

b. Remind all bus drivers with a written notice within 10 days of the date of this Order that they are required to implement the terms of the training they received with respect to educating other passengers who take exception to a person sitting in the priority seating that not all disabilities are visible ones.