Disability (Residential)

Devoe v. Haran, 2012 HRTO 1507 (CanLII)

[10] The applicant was 63 years old when she began renting an apartment on the second floor in September 2010. She testified that when she first moved in she did not have any disability-related problems. However, she stated that she was subsequently diagnosed with fibromyalgia and osteoarthritis, and that in the winter or spring of 2011, she began to experience back pain which was diagnosed as sciatica. She stated the back pain worsened over time and limited her mobility. As a result, she stated that she had great difficulty walking up the stairs to the second floor apartment, maintaining her apartment, and working and earning income. She stated that during the spring and summer of 2011 she visited the hospital five times because of health issues related directly or indirectly to her back. On or about August 7, 2011, the applicant delivered a letter to the landlord via the caretaker, which set out these circumstances.

[13] In early April 2012, the applicant also found out that one of the main floor apartments in her building would be vacant and available at the end of the month. She testified that she called the landlord, told him about her disabilities and her difficulty climbing the stairs to her second floor apartment, and asked him if she could transfer to the vacant main floor apartment. She stated that he did not provide her with an immediate response, but that when she called him back a second time, he told her that he would not consider her for the main floor apartment.

[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.

[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.

[36] The respondent’s position is that he cannot rent the vacant main floor apartment to the applicant mainly because she has physical and mental needs that cannot be accommodated in the apartment building. Under the Code, the respondent has both procedural and substantive duties to accommodate the applicant’s disability-related needs up to the point of undue hardship, and the onus is on the respondent to establish that he has met these duties. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649, at para. 103. More than a mere negligible effort is required to satisfy the duty to accommodate. See Central Okanagan School District No. 23 v. Renaud (1992), 1992 CanLII 81 (SCC), 95 D.L.R. (4th) 577 (S.C.C.), at p. 585.

[37] The procedural duty to accommodate involves obtaining all relevant information about the applicant’s disability, at least where it is readily available. The term “undue hardship” requires that the respondent seriously consider how the applicant could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the procedural duty to accommodate. In assessing whether the respondent has met the duty, the respondent’s efforts will be assessed at the time of the alleged discrimination. The respondent may not use after-acquired evidence to support its view that the applicant could not be accommodated. See ADGA, supra, at paras. 106-107.

[38] The substantive duty to accommodate requires the respondent to show that it could not have accommodated the applicant’s disability-related needs short of undue hardship. “Accommodation” refers to what is required in the circumstances to avoid discrimination. The factors causing “undue hardship” will depend on the particular circumstances of every case. The use of the term undue infers that some hardship is acceptable; it is only undue hardship that satisfies the test. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. See ADGA, supra, at paras. 112 and 116-117. The respondent has to present cogent evidence to support its position that it cannot accommodate the applicant’s disability-related needs because of undue hardship. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at paras. 78-79.

[63] Accordingly, the Tribunal orders as follows:

1) Within one week of the date of this Decision, the respondent and the applicant shall sign a standard rental agreement with respect to the vacant main floor apartment of the building that allows the applicant to move in to it immediately, and with the rent set at $900 per month. The applicant is required to move all her belongings and possessions out of the second floor apartment within one week of signing the rental agreement. The rent amount for the main floor apartment shall be prorated for the first month from the date the applicant moves in, and the respondent is not permitted to double charge the applicant for rent for her second floor apartment and the main floor apartment . 2) Within 30 days of the date of this Decision the respondent shall pay the applicant $4,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. The amount shall be offset by $67.47 for the damage that the applicant caused to the door of the apartment.

3) Post-judgment interest is payable on any amount of the award of monetary compensation for injury to dignity, feelings and self-respect not paid within 30 days of the date of this Decision.

4) Within 30 days of the date of this Decision, the respondent’s shall read the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, and complete the Commission’s online training module on human rights and provide a copy of the certificate of completion to the applicant.