Damage to Dignity

• Sexual Harassment (HRTO)

Polito v. Briarlane Property Management Inc., 2019 HRTO 708 (CanLII)

[1] The applicant, Frederico Polito, lives with a disability. Sometimes he can walk with a walker or a cane but most of the time he uses a scooter.

[2] The applicant moved into 55 Emmett Avenue (‘the building”) in the City of Toronto in September 1, 2016 where he continues to live.

[3] The applicant is only able to enter the front doors of the building, which are heavy, with great difficulty and in a manner that poses a risk to his safety as he fears his scooter could break the glass doors. His disability affects his hands and in order to enter with his scooter, he has to pull one of the doors open with great difficulty and wedge his scooter between the doors. If walking with his cane or walker, it is even trickier as he has to maintain his balance while opening the doors.

[4] The applicant has requested that automatic door openers be installed on the front doors of the building in order to allow him to enter the building through the front entrance easily and without risk.

[5] The respondents maintain that they cannot install automatic openers on the front doors, and contend that the applicant is able to access the building through the rear doors. The respondents say that accessing the building via the rear doors is an acceptable solution for the applicant.

[6] The applicant says that having to enter the building by the rear entrance is injurious to his dignity. The applicant recognizes that the respondents eventually installed automatic door openers on the rear doors of the building, but he says that unless making the front doors accessible causes undue hardship to the respondents, that this is not a reasonable accommodation.

[7] The applicant filed an application alleging discrimination contrary Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in the area of housing on the basis of disability.

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[58] The respondents ignored his initial request as they did the first letter from counsel. He was told the automatic doors openers on the front doors would be installed in March 2017 and they were not. A commitment to have the doors installed by August 2017 was made, and this as well did not transpire. It was not until December 2017 that there was an accessible entrance and this was at the rear of the building. All in all, it took the respondents around fifteen months to make an entrance the building accessible to the applicant.

[59] I find that all of this falls far short of what a disabled person can expect from a landlord or building administrator when accommodation is requested under the Code.

[60] The applicant did not testify at the hearing so I am unable to assess the second criterion, which is the applicant’s particular experience in response to the discrimination.

[61] In Wozenilek, above, the Tribunal ordered that respondent to pay the applicant $8,000 in damages. In that case, the accommodation had been granted by the time the case was heard.

[62] Although I do not have the benefit of the applicant’s testimony, taking all of the above into consideration, I consider it appropriate to award the applicant the sum of $10,000 dollars in general damages. Unlike Wozenilek, above, the applicant was prevented from entering his home, not a store, so a higher amount of damages is appropriate.

Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10 (CanLII)

[1] The Application alleges that the respondent failed to accommodate the applicant’s special needs related to childcare, and terminated her employment, at least in part, because she was unable to offer more flexible hours given her duties as a mother. When it was filed, the Application alleged discrimination with respect to employment because of family status and also reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[26] The Federal Court of Appeal issued a decision that clarified that the sorts of parental obligations that fall within the protected ground of “family status” under human rights legislation are substantive obligations that engage a parent’s legal responsibility to a child. See, Canada (Attorney General) v. Johnstone, 2014 FCA 110 (“Johnstone”).

[42] As the Tribunal stated in Conklin v. Ron Joyce Jr. Enterprises Ltd. o/a Tim Horton’s, 2017 HRTO 723, where the Tribunal has found that an applicant lost employment for discriminatory reasons, compensation for injury to dignity, feelings, and self-respect has ranged considerably. In most cases, the range has been between $10,000 and $35,000. In the applicant’s case, she lost long-term employment and I am satisfied that her particular experience in response to the discrimination was very serious. She was particularly vulnerable given her responsibilities and feelings towards her children. I am therefore prepared to order compensation for injury to her dignity, feelings and self-respect that is at the high end of the range of compensation.

[43] I find that it is appropriate to award $30,000 in compensation for injury to dignity, feelings and self-respect in this case.

Noe v. Ranee Management, 2014 HRTO 1658 (CanLII)

[2] The Tribunal held a hearing in this matter on February 21, 2014. In Decision 2014 HRTO 746, dated May 23, 2014, I found that the applicant has a disability that causes her to be sensitive to chemicals. I further found that she asked the respondent to accommodate her regarding its use of chemicals (paints, solvents, cleaners, etc.) in the apartment building in which she lived at 195 Barrington Avenue in Toronto. The respondent declined to accommodate the applicant, which I found was a breach of her right to be free from discrimination in the occupancy of accommodation under section 2(1) of the Code.

[9] The applicant requested $10,000 for compensation for injury to dignity, feelings and self-respect. The applicant did not participate in the remedy hearing and, as a result, the evidence before me regarding the subjective effect the respondent’s conduct had on the applicant is limited. Accordingly, I am not prepared to make the award requested by the applicant. Based on the objective seriousness of the respondent’s conduct in refusing the applicant’s request for accommodation, I find that an award of $5,000 for compensation for injury to dignity, feelings and self-respect is appropriate. I also find it appropriate to order that all of the respondent’s managerial employees take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and confirm completion of same in writing to the applicant within 90 days of the date of this decision.

ORDER

[10] The Tribunal orders as follows:

a. Within 30 days of the date of this Decision on Remedy, the respondent shall pay to the applicant $5,000.00 as compensation for injury to dignity, feelings and self-respect;

B.M. v. Cambridge (City), 2010 HRTO 1104 (CanLII)

[1] This is a Decision in respect of an Application filed on October 28, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant, through his next friend, his mother, alleges discrimination in services on the basis of disability.

[2] The applicant was 10 years old and diagnosed with Asperger’s Syndrome at the time of filing the Application. Prior to the Application, he had been a camper for many years at a summer day camp in Cambridge (the “Dolson camp”) that the corporate respondent (the “City”) operates. He alleges that the respondents refused to allow him to attend the Dolson camp in 2008 unless he was accompanied by one of their inclusion facilitators whom they would only provide for 2 of the 9 weeks of the summer programme.

[38] It is clear that the applicant’s disability was a factor in his inability to attend camp for the entire period camp was being offered in the summer of 2008. He has therefore established a prima facie case of discrimination and the onus shifts to the City to establish that it met its duty of procedural and substantive accommodation to the point of undue hardship.

[55] An order for compensation for such injuries is a discretionary award. I do not agree with the applicant’s counsel that an award of $25,000 is justified. However, in the circumstances of this case involving a particularly vulnerable applicant given his age and disability, an award of $12,000 is appropriate to compensate the applicant for loss of dignity and the injury to his feelings and self-respect arising from the breach of his right to be free from discrimination due to his disability. See ADGA Group Consultants Inc. v. Lane, supra, which confirmed that an award of general damages is predicated upon a number of considerations including the particular vulnerability of the complainant.