Duty to Accommodate - Re: Ground Floor (LTB)

Devoe v. Haran, 2012 HRTO 1507 (CanLII)

[30] In order to establish a prima facie case of discrimination, the applicant must prove that (1) she had, or was perceived to have, a disability, (2) she received adverse treatment, and (3) her disability was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52, at para. 36.

[31] With respect to the first part of the test, the applicant proved that she had a disability within the meaning of the Code. She provided medical evidence and oral testimony that showed that she has severe osteoarthritis causing joint pain, degenerative disc disease with sciatica causing marked back and leg pain, and fibromyalgia resulting in generalized muscle pain, and that these medical conditions limit her mobility, including her ability to climb up and down stairs and to clean and maintain her apartment.

[32] With respect to the second part of the test, the applicant proved that she received adverse treatment. She provided oral testimony and documentary evidence that in early to mid-April 2012 the respondent refused her request for a transfer from her second floor apartment to the vacant main floor apartment, and then began showing the vacant apartment to other prospective tenants.

[33] With respect to the third part of the test, the applicant proved that her disability was a factor in the adverse treatment. She provided oral testimony and documentary evidence that showed that the respondent refused her transfer request after she informed him that she had a disability and needed the vacant main floor apartment as an accommodation of her disability-related needs. The respondent’s refusal to accommodate the applicant’s disability-related needs falls within the definition of discrimination that was set out by the Supreme Court of Canada in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 174-75: Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

[34] Furthermore, in his Response and at the hearing, the respondent did not dispute that the applicant had established a prima facie case of discrimination. Specifically, he did not dispute the fact that the applicant had a disability and mobility issues related to her disability, and admitted that he refused to rent her the vacant main floor apartment because of her “physical and mental needs”. The applicant is not required to prove that disability was the sole factor in the decision to deny her the vacant main floor apartment; it is sufficient that she prove that disability was one factor. See, for example, Dominion Management v. Velenosi, (1997) 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (ON C.A.), at para. 1; and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON SC), 16 O.R. (3d) 290 (Div. Ct.), at para. 11. [35] Accordingly, I find that the applicant established a prima facie case of discrimination by proving that the respondent refused to consider her for the vacant main floor apartment because of her disability, and that is sufficient to shift the evidentiary burden to the respondent to establish that his actions were non-discriminatory.