May 31, 2016

Restaurant who refuses to serve customer with a service dog ordered to pay $ 2500 in general damages

Obligations to Train Employees On Human Rights Issues

We often represent employers and employees who have human rights issues. It is a rather complex area of the law, especially cases involving individuals with disabilities. For more blogs on the rights of disabled employees, click here.

An employer has obligations towards disabled employees under the Ontario Human Rights Code (the “Code”) and the Accessibility for Ontarians with Disabilities Act  (“AODA”) including mandatory training. For more information on an employer’s obligations under AODA, click here.

A recent case illustrates what can happen if an employer doesn’t properly train its employees on human rights issues.

The Facts of the Case

An autistic person, his mother and a service dog were refused service at a restaurant because they wanted the service dog to accompany them. The mother called the police who advised that they could not intervene. The police suggested they call the municipality but they were advised that the municipality could also not intervene and referred them to the Human Rights Legal Support Centre which said they did not have the resources to intervene in the immediate situation, but told them how to file an Application. After calling these places and getting no assistance, they left the restaurant and filed an application under the Code four days later.

The Law

The Human Rights Tribunal of Ontario (the “Tribunal”) found that autism spectrum disorder is a “disability” within the meaning of the Code

The Tribunal concluded the restaurant did not accommodate the son’s disability and in this regard quoted a section of a regulation under AODA, which states: “If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.”

The responsibility for ensuring that servers are properly trained and aware of the obligations of a service provider rests with the employer and not the employee. Any liability for discrimination done by an employee in the course of the employee’s employment that results in a breach of the Code is that of the employer.

The Decision

The restaurant violated the autistic person’s right to be free from discrimination because of a disability by refusing to permit his service dog to enter the restaurant.

The restaurant was ordered to retain at its cost an expert in human rights to develop a human rights policy.

The restaurant was ordered to pay the son $2,500 as compensation for injury to dignity, feelings, and self-respect. This case can be contrasted to an earlier decision where a person with a service dog was denied access to a mall for about 5 minutes and was awarded $ 1000 in damages because a mall employee did not understand his right to bring the service dog into the mall. For more information on this case, click here.

Lessons to be Learned:

  1. Many employers have a positive obligation to train employees on human rights issues, particularly under AODA. Failure to train employees can result in an employer being ordered to pay for an employee’s unfamiliarity with the law.
  1. Employers who offer services to the public, like restaurants, are particularly susceptible to human rights claims. Many members of the disabled community are aware of their rights and will enforce them. In this case, the mother told the restaurant staff that her son had the right to bring a service dog into the restaurant before she and her son were denied service.
  1. Employers should participate in the application process under the Code. In this case, the restaurant did not send a representative to the hearing. It is possible that because the adjudicator did not hear both sides of the story the damage award was higher than it would have been otherwise.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]


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