The following are some highlights of settlements and decisions reached during the 2006-2007 fiscal year:
Nadia Abel, Lee Middleton, Christa Provo & Rob Provo v. Royal Steter Ltd. and Cosby (Tribunal Settlement)
In this complaint, four complainants alleged that while waiting in line to make an order, the security guard on duty told them that they had to leave the restaurant without giving any valid reason. The complainants claimed that they were the only black customers out of over 40 persons at the restaurant at the time and that security guard targeted them because they were Black. They also alleged that subsequent complaints to Burger King management were not taken seriously.
In the settlement, the Commission obtained a number of public interest remedies to address future behaviour, including:
- a requirement that all security companies, currently retained or who bid for contracts, must train their officers on human rights and racial profiling, and acknowledge an obligation by the security company and its officers to comply with human rights legislation,
- establishing a clear customer complaint policy that is posted at the Burger King location involved in this case, and
- providing human rights training to all current and future managers, and ensure that future training includes a discussion of the policy.
Michelle Hogan, Martine Stonehouse, A.B. and Andy McDonald v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care (Tribunal Decision)
Before October 1, 1998, the provincial government provided public funding for sex reassignment surgery to persons who were approved for that surgery by the Gender Identity Clinic (the "Clinic") at what is now the Centre for Addiction and Mental Health ("CAMH"). The Clinic would grant its approval if satisfied that, among other things, the person had successfully completed a real-life test by living publicly in the desired gender role for two or more years.
Effective October 1, 1998, the government removed public funding for sex reassignment surgery for all persons who had not already received Clinic approvals for surgery.
Four complainants who received Clinic approvals for sex reassignment surgery after October 1, 1998, challenged the government's decision to remove public funding. The Commission and the complainants argued before a three-member panel of the Tribunal that the government's decision to remove funding amounted to discrimination with respect to services because of sex and/or disability.
A majority of the panel held that the government's removal of public funding for sex reassignment surgery was not itself discriminatory. However, it held that the government did discriminate on the basis of sex and disability against persons who had started medically-supervised transitions before October 1, 1998, and who received approvals for surgery from the Clinic within six years of having started their transitions. These persons should have received public funding for surgery, to allow them to complete the gender transitions they had begun at a time when public funding for surgery was still available.
Applying these criteria, the Tribunal majority held that three complainants had been subjected to discrimination, and ordered the government to provide them with funding for surgery, and with general damages ranging from $25,000 to $35,000 per person.
One dissenting member of the Tribunal would have held that the government’s decision to remove public funding for sex reassignment surgery was discriminatory, arbitrary, reckless and an abuse of power. She would have ordered the government to fund sex reassignment surgery for all four complainants, since all four met the criteria for funding that had existed prior to October 1, 1998.
The Commission has field an appeal to the Divisional Court.
Gurcharan Dran v. Paramount Canada’s Wonderland Inc. (Tribunal Settlement)
The complainant who is Sikh and is required to wear a turban as part of his religious beliefs, alleged that after buying tickets for a go-kart track ride at Paramount Canada’s Wonderland, he was not allowed on the ride as regulations under the Technical Standards and Safety Act, 2000 require all patrons to wear a helmet.
As part of the settlement, Canada's Wonderland agreed:
- to pay some compensation to Mr. Dran
- to request a variance from the Director of the Technical Standards & Safety Authority (the “TSSA”) and an exemption from the responsible Minister to allow Sikh patrons to ride Speed City Raceway without a helmet where those patrons are required, as part of their faith, to wear a turban, and
- the Commission agreed to write a letter to the Director and the Minister, which it has done so and is following up with both to secure this exemption province-wide.
Gerard Loisel v. The Niagara Regional Police Service (Tribunal Settlement)
The complainant, who is deaf was involved in a dispute when police officers were called and he was later arrested. At the police station, the police took Mr. Loisel’s personal items, including his glasses and hearing aid, and placed him in a cell. While the respondent proceeded to complete the formalities of the arrest, the complainant did not have his glasses or hearing aid, nor was he provided with an interpreter. The Commission’s investigation alleged that there was a lack of clear procedures to ensure that Mr. Loisel’s disability needs were properly accommodated.
As part of the settlement, police agreed:
- to review and amend its policies relating to the confiscation of personal property belonging to persons in custody and access to interpreters where the detained individual has a disability, and
- to amend its General Order-018.06 in respect of “Persons in Custody” by adding a new section (6.1.0) entitled, “Compliance with the Ontario Human Rights Code”, which stated that although it may be reasonable to remove a walking stick from an aggressive detainee, it may not be reasonable to relieve a person of his/her hearing aid when required for communication purposes.
Kimberly Altenburg, Kimberly Brehm, Meenakshi Chail, Kathy Delarge, Sharon Dunbar, Irene Hein, Jacqueline Herold, Jean Hewer, Theresa Kaufman, Betty Knott, Narinjan Lamba, Penny Lang, Arlene Lupton, Judy Maerten, Vicki McMahon, Genevieve Phillips, Cathy Riddell, Sandra Rollerman, Virginia Schlotzhauer, Lynda Swan, Sheila Thomas, Colleen Tiemens, Debbie Tulloch, Linda Van Arkel, Doreen Waldron. v. Johnson Controls Limited (Partnership) and Johnson Control Inc. (Tribunal Settlement)
The complainants were all formerly employed with Johnson Controls, a large corporation, at their Stratford Plant location (the “Plant”), until its closure on December 14, 2001. They alleged discrimination based on disability in relation to their pension benefits. The agreement allowed employees to apply for early retirement, prior to age 65, if they: (1) had more than 30 years of service, regardless of age; (2) were between 60 and 64 and had 10 years or more of service, and (3) were either permanently or totally disabled and had 10 years or more of service.
Prior to the Plant closing, Johnson Controls and the union negotiated a closure agreement, which included a term that allowed able-bodied employees in the first category to receive an early retirement pension and benefits after the plant closure date. Employees with 30 or more years of service did not have to formally apply for early retirement before to the Plant closure date. They could make that election, after the Plant closed, if they chose to retire. However, the parties did not negotiate a similar provision in the closure agreement for employees in the second and third categories.
On December 11, 2001, Plant employees received a notice about the pension windup, which did not include a warning to those in the second and third categories that they needed to make an application for a pension prior to the Plant’s closure on December 14, 2001. Since most of the disabled workers were off work on extended disability benefits and/or workplace safety and insurance benefits, they were not aware of the need to make their early retirement applications prior to Plant closure. Consequently, they made their applications after the Plant closure date.
Although Johnson Controls granted an extension for the right to apply for early retirement after closure date to employees that fell within the second category and employees who were very close to 30 years of service, the disabled employees in the third category did not receive this extension.
Under the settlement:
- the closing agreement will be amended to allow the complainants to apply for pension and retiree health care benefits with different options, including a provision for now deceased employees,
- Johnson Controls acknowledges its obligations to keep disabled employees fully advised of their rights and entitlements to any and all changes with respect to their employment related benefits, specifically with respect to retirement health care benefits and pension benefits, and extends this to employees not actively employed but absent from the workplace on account of sick leave, WSIB, LTIP and /or any other disability related paid or unpaid leave.
Jessica Reynolds v. Toronto Transit Commission (Tribunal Settlement)
The complainant, who has a disability, uses a walker as a mobility aid. She alleged that when she asked a TTC bus driver to lower a ramp that is used to assist people with mobility difficulties, the driver refused, stating that TTC policy only allowed deployment of the ramp for people in wheelchairs and scooters.
Since the incident, the TTC cautioned the driver and reminded him of their policy that all operators should be proactive in deploying the lift or ramp to accommodate customers with any mobility issue. The TTC also re-posted this policy at least twice to remind drivers of their obligations, and sent a notice to all drivers in their paycheques.
The TTC also agreed that, before December 31, 2007, it will undertake an advertising campaign, similar to other normal advertising campaigns, which will positively advertise its current policy on accessible transit (including that TTC drivers should be proactive in deploying the lift or ramp to accommodate customers, with any mobility issue, in accordance with the policy) and the availability of accessible lift/ramp-equipped and low-floor buses to patrons. The campaign will involve placing “car card” posters and “dangler” leaflets on randomly selected buses, and is scheduled to run for 4 to 6 weeks.
Eleanor Iness v. Caroline Co-operative Homes Inc., Canada Mortgage and Housing Corporation (Tribunal Decision)
Until 1994, Caroline Co-operative Homes Inc. (“Caroline Co-op”) had a formula for setting tenants’ rents at 25% of a tenant’s income. In May of 1994, Canada Mortgage and Housing Corporation (“CMHC”) did a review of Caroline Co-op, and advised Caroline Co-op that it was not setting rents as called for in the agreement between the Co-op and CMHC.
Before January 1, 1995, Eleanor Iness’ rent was calculated as a percentage of her monthly income, as was the rent for all tenants whose rents were geared to income. As of January 1, 1995, Caroline Co-op set the rent for tenants in receipt of social assistance benefits, including Iness, according to the maximum available shelter allowance that each was eligible to receive. Before that date, Iness was able to receive a shelter allowance that covered not only her rent, but also her utilities and insurance. However, as a result of the 1995 change, she could no longer “add” her utilities and insurance costs to her rent.
The Tribunal found that the Co-op ought to have set Iness' rent so as to allow her to meet her rent, hydro costs and insurance costs out of the shelter component of her benefit, and ordered the Co-op:
- to set the housing charge for its members who are in receipt of public assistance in such a way that they may pay the sum of their housing charge, hydro costs and insurance costs out of the amount they receive as the shelter component of their public assistance benefits
- to respect the dignity of its members who are in receipt of public assistance by treating their source of income in the same way they would if their income were derived from paid employment, and,
- to refrain from having unauthorized direct dealings with the social benefits' authorities to discuss the quantum of benefits pertaining to housing available to persons in receipt of public assistance.
The Co-op has appealed the case to the Divisional Court.
Renata Braithwaite and Robert Illingworth v. Attorney General for Ontario and Chief Coroner of Ontario (Tribunal Decision)
Renata Braithwaite’s mother and Robert Illingworth’s brother died while they were being involuntarily detained in psychiatric facilities. Requests that the Coroner conduct inquests into these deaths were denied. Under s.10(2) of the Coroners Act, the Coroner has a discretion to decide whether to order an inquest into the death of an involuntary patient in a designated psychiatric facility. However, in a situation where a person dies in prison, the Coroner must hold an inquest and has no discretion to refuse to do so.
The Tribunal held that s.10(2) violated the Human Rights Code because under s.10(4) of the Coroners Act, members of a group comparable to involuntary psychiatric patients, prisoners, were automatically given an inquest upon death, and families of prisoners were given the right to know how their loved ones died. In contrast, the families of patients in psychiatric facilities, for many of whom the loss of liberty is similar, were denied the finality and closure that an inquest brings.
In its decision, the Tribunal:
- ordered that s.10(2) of the Coroners Act not be applied in this case
- directed the Chief Coroner to hold inquests into these two deaths, and
- awarded $5,000 in damages to the family members.
The Attorney General and the Chief Coroner have appealed this decision to the Divisional Court.