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$19 golf cart fee is not unfair to disabled member (who still golfed all season), Tribunal finds

Nov 24, 2015

golf

Upset by the escalating cost of power cart rentals at Deer Ridge Golf Club, Larry Helm took the club to the Human Rights Tribunal.

Mr. Helm must use a power cart when he golfs because of a disability. But there is an extra charge, on top of the membership fees, to rent a cart. He argued that there should not be a “surcharge for accessibility.”

So far so good, right?

The Tribunal didn’t bite. The evidence was that Mr. Helm and his wife had lots of disposable income. Each paid $50,000 for an initial buy-in of shares in the club, plus annual dues, capital fees and guest fees of roughly $5400 plus HST each, annually. In other words, it was an expensive pursuit, and the Helms were able to pay.

To rent a golf cart at Deer Ridge cost $14 in 2009. Prior to that, members could get a $2 discount if they proved that the cart was required because of their disability, but the program was discontinued because of member abuse. The cost of renting a cart went up sharply in subsequent years, as high as $19 by 2013.

The Tribunal chose to give effect to the final words from this passage in the Supreme Court of Canada’s decision in Andrews v LSBC:

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. [Emphasis added]

It found as a fact that the cost of the rental had not limited Mr. Helm’s use or enjoyment of the golf course. In fact, he had golfed over 100 times in 2012 and 2013.

The Tribunal appeared to have difficulty squaring the complaint over a $19 golf cart with the fact that the Helms had spent six figures in fees and shares at the club since they’d joined. Bring me an applicant, the Tribunal seemed to be saying, whose access was limited not by the $50,000 buy-in but the $19 golf cart, and I’ll find the fee discriminatory.

There is an old Latin maxim, De Minimis Non Curat Lex — the law does not concern itself with trifles. The golf club argued that “the applicant’s pursuit of a discount on his golfing expenses through a human rights application trivializes the purposes of the Code.”

The Tribunal did not expressly endorse this argument. But in its final analysis, it was unwilling to accept that the “disadvantage” of the golf cart fee amounted to a “substantive disadvantage” under the Code. And that shows a failure of the applicant to demonstrate the seriousness of his complaint.

With a different set of facts — where the fee represented an actual barrier to participation— the outcome would likely have been different. Perhaps a future case will help practitioners distinguish this case from other, more workaday scenarios.

Symes Street & Millard specializes in employment and human rights law and has represented both applicants and respondents in many cases before the Ontario Human Rights Tribunal.

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Photo by Zach Dischner used under cc licence


Tailor your freedom of information request, and other helpful advice

Nov 12, 2015

McCannMarcus McCann has ten years of experience with freedom of information requests as a lawyer and journalist. Here is a brief conversation with Marcus about the process.

How difficult is it to file a freedom of information request?

On its face, it’s not difficult at all. Anyone can do it. The first thing to do is figure out which government ministry or department has the information you want. Each one has a freedom of information office. Cities and municipalities do too, as do some large institutions like universities and colleges. You can write them a letter or use their form. There is a nominal fee, usually $5, and that’s it. You’re off to the races.

You said, “on its face.” Is it more complicated than that?

Sure. It really is that simple to get started, and there’s no downside, so I encourage people to try it. But how you frame your request will have a big effect on the information you get. Generally speaking, if there is a document that you know exists, ask for that document. The more narrowly you tailor your search, the better it’s going to be: the results will come more quickly, and be more on point. Fishing expeditions are generally not advisable.

Why is that? Does the law forbid fishing expeditions?

No, no. There is no law forbidding broad requests. But the folks who handle your requests are real people, and they’re just going to work harder for you if they get the sense you know what you’re looking for. There’s also the cost, which can be significant.

The cost? Isn’t it usually $5?

Yes, but the next step is that the government will estimate how much time it will take to locate the documents, and how much photocopying is required. There is a formula, and broad requests can get expensive. The most expensive one I did was about $3000, but I’ve heard of requests which cost as much as $100,000. The cost estimates can be appealed, and if you’re not in a hurry, it’s usually worth doing.

If you’re not in a hurry? How long do requests take?

Well, one important thing to know is that these requests take a long time. I would budget at least a year. It usually takes 30 days to hear back, but a ministry can unilaterally extend their deadlines, and they often do. Appealing the cost estimate can result in an additional delay of three or four months on average, so it’s something to consider. My longest request, well, it’s ongoing actually. I filed it in September of 2012, so it’s already been more than three years.

That’s a long time. Why the delay?

The ministry in that case significantly redacted the documents which were provided to me, and I appealed that to the Information and Privacy Commissioner. There was mediation, and then a paper hearing. I won, but the ministry appealed. So now I’m headed to divisional court, probably in the winter or spring of 2016.

What’s the issue?

It’s about solicitor-client privilege, which is one of the exceptions to the rule that ordinarily citizens ought to have access to documents created by their own government. In my case, the document I want was created by a lawyer, but she waived solicitor-client privilege by sharing it with a third party. At least, that was the conclusion reached by the IPC. There are other exceptions too, for ministerial advice, for example. When these types of cases come up for judicial review, it’s usually about one of the exceptions, and those can be kind of technical.

Anything else you want to add?

The process sounds like a slog, but it’s really not that intensive. It’s just a lot of waiting. And not all requests take quite so long. I had a great experience with the Canada Border Services Agency’s access to information staff — fast, efficient, helpful — so it’s not always a big fight. You know, in a world where there are fewer and fewer investigative journalists out there, other players like NGOs, unions, businesses, and individuals are picking up the slack. That’s useful. Or, at least, it can be.

Symes Street & Millard specializes in administrative law and has represented both applicants and respondents in many cases before boards and tribunals. The firm has represented requestors in FOI cases and appeals.


Forbidding religious avatars on coupon website is not discriminatory, Tribunal finds

Nov 04, 2015

5347580266_f1bd0f238d_zAfter a forum moderator asked a user to stop using a Jesus fish logo in his posts, the matter was put to the Ontario Human Rights Tribunal — which ultimately found no violation of the Code.

One of the more difficult things the Tribunal does is decide whether an activity triggers the Code’s protection from discrimination on the basis of religion. If it does, the Tribunal will then engage in additional analysis, but at the outset the question is whether the Code is engaged at all.

In Clipperton-Boyer v RedFlagDeals.com, 2014 HRTO 1796, the complainant’s avatar was a stylized fish accompanied by the words “Jesus Christ, God’s Son, Saviour.” He was a frequent commenter on the forum, and he used the logo for several years without any issues. After others complained, however, he was asked to change his avatar three times.

The logo violated the forum policy of the host website, RedFlagDeals.com, which forbids religious and political messaging on its site. While the policy may have a whiff of a kind of forced secularism, at the hearing RedFlagDeals.com defended its policy in the following way:

[T]he Forum Rules reflect the concern that off-topic postings relating to controversial topics such as politics or religion can lead to personal attacks, angry disputes and discriminatory remarks.

In the end, the wisdom of such a policy was not the central issue, because the Tribunal found that the religious protection was not engaged by the policy as it applied to this claimant.

Why? To understand the distinction, you have to understand that the Tribunal will only accept religious claims which fall into three categories. The claimant must prove: an activity is objectively required by his religion; or that he in his mind believes that the activity is required by his religion; or that “the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith.”

This test can sometimes put the Tribunal in a bit of an awkward spot. In the RedFlagDeals.com case, each of these categories was put to the applicant. He testified that the avatar gave him “a little spark”, and that it was comparable to a t-shirt or a tattoo. As the Tribunal concluded:

In my view, the applicant’s analogy of his use of the avatar to wearing a religious T-shirt or having a religious tattoo is apt. It is simply a personal and outward display of one’s religious beliefs that may make the person feel good and remind them of their faith, but does not engender any profound or deep connection to the divine.

Since the avatar was also not required by his religion, the Tribunal found that the policy wasn’t a violation of the Code on its face.

It may well be that the Tribunal underestimated the centrality of outward expressions of religiosity to some adherents. Certainly, it would have been a tougher case for the Tribunal to decide if evidence had been led about the importance of evangelizing among some Protestant denominations.

But at the end of the day, cases like this one are decided based on the evidence before the Tribunal, and applicants are required to put their best foot forward. Characterizing the nature of the religious practice at stake became the pivot on which the case turned. With a different characterization, the case may have been resolved differently.

Symes Street & Millard specializes in employment and human rights law and has represented both applicants and respondents in many cases before the Ontario Human Rights Tribunal.

[Photo by Marcie Casas used under cc licensing]


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