A now-defunct Montreal nightclub was ordered to pay $2,500 in moral damages to a blind man for refusing to grant him and his guide dog access to the dance floor, following a ruling by the Quebec Court of Appeal that raises the bar for business to accommodate disabled people.
In a majority decision that demonstrates yet again the appeal court’s penchant to overturn rulings by the Quebec Human Rights Tribunal, the appellate court held that Simon Beauregard was a victim of discrimination because the nightclub did not take reasonable efforts to accommodate him.
“The principles that emerges from this ruling is that it will take extremely serious reasons to refuse to accommodate someone so in one sense one can rejoice but what preoccupies me is that the Quebec Human Rights Tribunal does not appear to benefit from a minimal amount of deference by the appeal court,” remarked Christian Brunelle, a law professor specializing in human rights at the Université Laval. “The appeal court does not shy away from overturning the Tribunal’s rulings, sometimes even over the appreciation of evidence. That’s what it seems to have done here.”
The ruling, which marks the first time the Quebec appeal court ruled on access to public spaces for service dogs for disabled persons, imposes a “heavy burden” on business that adopt a discriminatory policy to prove that it was based on a bona fide and reasonable justification, said Marc Benoit, an employment lawyer with Loranger Marcoux in Montreal. “Can you imagine the burden that it places on service providers who have to make a decision on the spot,” asked rhetorically Benoit. “The bar is higher than it was.”
On May 2009, Beauregard went to the Radio Lounge Bar with his guide dog and a friend, and was told by the manager that he had to leave the animal in the coat-check area. The bar’s staff were concerned about the presence of the service dog in the middle some 500 partygoers, and feared that it could lead to falls, pushing and shoving, and even fights, even though Beauregard insisted he had never had a problem in other establishments. The owner of the bar, Ahmed Ziad, stepped in and offered Beauregard and his service dog access to a V.I.P. lounge, located away from the dance floor. A month later, Beauregard lodged a complaint with the Quebec Human Rights Commission alleging that he was a victim of discrimination, based on his handicap and the means he used to “palliate” his handicap, infringing articles 10 and 15 of the Quebec Charter of Human Rights and Freedoms.
On February 2013, 18 months after the Commission took legal action before the Quebec Human Rights Tribunal, the Tribunal cleared the bar owner of any wrongdoing. The Tribunal held that while preventing Beauregard and his service dog to gain access to the dance floor was discriminatory, it found that the refusal was based on “a real and reasonable” concern for security. The “mere presence” of the dog on the dance floor where there were several hundred patrons, “many of who were probably drunk,” created a high risk for falls, said the Tribunal.
The appeal court, heeding guidance issued by the Supreme Court of Canada in the Grismer case [British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868] and the Meiorin case [British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, 1999] overturned the Tribunal’s ruling. In Meiorin, the SCC developed a new test for all types of discrimination that broadened the notion of the duty to accommodate. Once a plaintiff establishes a prime facie case of discrimination, the onus lies with the defendant to prove on a balance of probabilities that the policy or standard has a bona fide and reasonable justification. In order to establish this justification, the defendant must prove that that it adopted the policy or standard for a purpose or goal rationally connected to the function being performed, that it was adopted in good faith, and that the policy or standard is reasonably necessarily without incurring undue hardship. A serious risk or excessive cost may be considered as undue hardship.
The Quebec Court of Appeal held in Commission des droits de la personne et des droits de la jeunesse c. 9185-2152 Québec inc. (Radio Lounge Brossard), 2015 QCCA 577 that the Quebec Human Rights Tribunal did not apply all of the elements of the Meiorin test correctly. The Tribunal correctly came to the conclusion that Radio Lounge passed the first two steps of the Meiorin test: its decision was based on a legitimate objective, that is, to ensure the security of its clients, and the nightclub acted in good faith. But the appeal court found that the Tribunal did not apply the third part of the test correctly. Instead “it limited itself to finding that the presence of the guide dog could entail a ‘high’ risk of incidents,” said Justice Jean-François Émond in reasons that Justice Marie-France Bich agreed with. “It did not consider whether the evidence had established the ‘serious’ or ‘undue’ nature of such risk or even its existence. It therefore bypassed the issue without addressing the fact that no actual accommodation had been seriously considered. In this case, the risk was assessed in light of evidence based on impressions.” Granting access to the V.I.P. section was not in fact an “actual accommodation,” but rather was an exclusionary measure that had the effect of isolating Beauregard.
“The appeal court first of all confirmed the importance of granting equal access to handicapped people, and it reminds establishments – private as much as public – that blind people accompanied by service dogs must have access to the establishment,” remarked Marie Dominique, a lawyer with the Quebec Human Rights Commission who successfully plead the case. “They cannot allege a risk to skirt around their obligation to take reasonable steps to accommodate, unless the risk is serious or excessive. So this ruling goes further than the majority of decisions on matters regarding access to public spaces for handicapped people.”
Benoit, however, is concerned about the burden of proof that service providers will have to establish to justify a discriminatory policy. He notes that a business that does not provide a reasonable accommodation will have to demonstrate that the risk is excessive and serious, and that it cannot be based on preconceived ideas or notions. “It has to be based on objective evidence – and it is going to be really interesting to see how service providers will be able to prove that before the courts,” said Benoit. “The burden of proof has become excessively high for service providers.”
Appeal court Justice François Pelletier would have upheld the Tribunal’s ruling. He asserted that the appeal was principally based on an appreciation of evidence, and that deference should have been given to a “specialized body” that was given the mandate to decide on human rights matters. Besides, it was reasonable to conclude that it would have been “unwise” to allow the dog access to the dance floor given the risks that it posed under the circumstances, added Justice Pelletier.
The ruling also appears to go against the grain of yet another ruling by the SCC that seemingly lowered the bar over the duty to accommodate, according to Brunelle. In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 SCR 561, 2008 SCC 43, the SCC overturned a ruling by the Québec appeal court and held that an employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.
“The SCC held in the Hydro-Québec ruling that the Meiorin test must be read with a certain degree of flexibility,” noted Brunelle. “However, in the Radio Lounge decision, the appeal court takes a very strong stance and states the obligation to accommodate is extremely important. But in reading the decision one would be hard-pressed to figure out what the nightclub could have done more. Not much guidance is given to determine what is considered to be an excessive risk.”
A ruling by the Supreme Court of Canada that dismissed a proposed securities class action against a Montreal pharmaceutical company will likely make it more difficult for investors to launch these kinds of lawsuits in the future, say class action and securities lawyers.
