Guidelines on the Responsibility of Service Providers

(as of May, 2017)

Guidelines are not law. These guidelines reflect the Newfoundland and Labrador Human Rights Commission’s interpretation of the provisions of the Newfoundland and Labrador Human Rights Act 2010 (“the Act”) and legal decisions from across Canada with respect to accommodation by service providers. They are subject to decisions by Boards of Inquiry (called Tribunals in some provinces) and the Courts and should be read in conjunction with such decisions and with the specific language of the Act. Readers should be aware that as with all areas of law, legal obligations may evolve as new decisions emerge. If there is any conflict between these guidelines and the Act, the Act will prevail. Any questions regarding these guidelines should be directed to Commission staff. These guidelines should not be substituted for legal advice.

Introduction

The Human Rights Act, 2010 is the law in this province that provides for equal rights and opportunities, and freedom from discrimination. The Act recognizes the dignity and worth of every person. Section 11 of the Act provides for protection from discrimination in relation to “goods, services, accommodation or facilities that are customarily offered to the public”.

People are protected from discrimination based on disability. People with disabilities have the right to be free from discrimination and receive accommodation for their disability when they receive goods, services, and accommodation or use facilities. The Act also protects people based on other grounds such as race, nationality, religion, age, sex, gender identity, and marital or family status. There are a limited number of situations where these protections do not apply. These are set out in section 11(3) of the Act (see: “Relevant Provisions”).

What services are covered?

“Services” is a broad category and can include privately or publicly owned or operated services. Some examples are:

stores, restaurants, bars
hospitals and health services
schools, universities and colleges
day cares, after-school programs
public places, amenities and utilities such as recreation centres, public washrooms, malls and parks
services and programs provided by municipal and provincial governments, including social assistance and other benefits
services provided by insurance companies
public transit including buses, taxis

Types of Discrimination

People with disabilities are a diverse group, and experience disability, impairment and societal barriers in many different ways. Disabilities are often “invisible” and episodic, with people sometimes experiencing periods of wellness and periods of disability. All people with disabilities have the same rights to equal opportunities under the Act, whether their disabilities are visible or not.

Discrimination against people with disabilities is often linked to “ableism” (attitudes in society that devalue and limit the potential of people with disabilities), prejudicial attitudes, negative stereotyping, and stigma.

Discrimination in services may happen when a person experiences negative treatment or impact because of their disability.

Discrimination does not have to be intentional and a person’s disability needs to be only one factor in the treatment they received for discrimination to have taken place.

People with disabilities who also identify with other Act grounds (such as sex, race or age) may be distinctly disadvantaged when they try to access a service. Stereotypes may exist that are based on combinations of these identities, placing people at unique disadvantage.

Discrimination may take many different forms. It can happen when service providers specifically exclude people with disabilities from receiving services.

Example: A day care refuses to take a child who has a disability because they believes that the child has complex needs, and will take up too much of their time and attention.

Discrimination can also happen when service providers withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate reason. This discrimination is often based on negative attitudes, stereotypes and bias.

Discrimination may also happen “indirectly.” It may be carried out through another person or organization.

Example: A private school indirectly discriminates by instructing an admissions scout it has hired not to recruit students with disabilities who have costly accommodation requirements.

Discrimination is often subtle. It may not be likely that discriminatory remarks will be made directly. Subtle forms of discrimination can usually only be detected after looking at all of the circumstances of a situation to see if a pattern of behaviour exists. Individual acts themselves may be unclear or explained away, but when viewed as part of a larger picture, may lead to an inference that discrimination based on a protected ground was a factor in the treatment a person received.

Example: A university professor tells his class that learning disabilities do not exist – students are just lazy and watch too much television. This type of comment could be an indicator of discrimination in that particular learning environment for students with learning disabilities who are docked marks based on their request for an assignment extension required because of their learning disability.

Discrimination can occur in relation to the other protected grounds such as nationality and age.

Example: A bar owner refuses to admit any patron of a particular nationality because they think that people of that nationality over drink and become violent and abusive.
Example: A recreational facility has a pool policy which does not permit children under the age of 3 or if wearing diapers to enter the pool because they think it raises a health and safety risk for the other patrons.

Examples of Cases involving Discrimination in the Provision of Services

Discrimination was found in the provision of taxi services by the city and the taxi companies involved on the basis of disability where the Complainant was denied 24 hour wheelchair accessible taxi service customarily available to non-disabled taxi users. The Tribunal found that the discrimination was not reasonable and justifiable in the circumstances as accommodation was not made to the point of undue hardship.[1]
A 10-year old boy diagnosed with Asperger’s Syndrome was denied attendance at a summer camp unless he was accompanied by one of the camp’s inclusion facilitators whom the camp would only provide for 2 of the 9 weeks of the summer camp program. The Tribunal concluded that the camp had discriminated against the child because while they may have been justified in requiring an inclusion facilitator, by not providing one for all the weeks of the summer camp when he applied to attend the camp and refusing to allow him to attend camp without one, they failed to accommodate his needs arising from his disability.[2]
A doorman of a nightclub denied entrance to all persons of Asian descent in the bar because they were aware of an Asian gang in the vicinity. The Complainant who was denied entrance, based on his Asian appearance, was successful in proving discrimination. The bar owner did not provide evidence of any rude or aggressive behavior by the Complainant or anyone he was with and the denial of entry was not justified due to the alleged presence of gang members in the area.[3]

How to avoid a claim of discrimination

(1) Design inclusively and remove barriers

People with disabilities face many kinds of barriers every day. These could be attitude, communication, physical and systemic barriers. Service providers should identify and remove barriers voluntarily instead of waiting to answer individual accommodation requests or complaints.

Example: A municipal community center installs visual fire alarms in all of its buildings to advise people who are deaf, deafened or hard of hearing of emergency situations.

Effective inclusive design reduces the need for people to ask for individual accommodation. Service providers should use the principles of inclusive design when creating policies, programs, procedures, standards, requirements and facilities.

Negative attitudes about people with disabilities can be barriers too. Taking steps to prevent ableism will help promote respect and dignity, and help people with disabilities to fully take part in community life.

(2) Comply with your Duty to Accommodate

Under the Act, service providers have a duty to accommodate the needs of people with disabilities to the point of undue hardship, to make sure they have equal opportunities, equal access and can enjoy equal benefits. The goal of accommodation is to allow people to equally benefit from and take part in services.

This means that service providers and others may need to change their rules, procedures, policies and requirements to allow for equal access and equal opportunities.

Three key principles drive the duty to accommodate:

respect for dignity
individualization, and
integration and full participation

The steps taken to assess an accommodation (the “procedural” part of the duty to accommodate) are just as important as the accommodation that is provided (the “substantive” part of the duty to accommodate). Both the person requesting the service (“the user”) and the person providing the service (“the provider”) have roles in the accommodation process.

Service users who need a disability-related accommodation must:

make accommodation needs known to the best of their ability, preferably in writing, so that the person responsible for accommodation can make the requested accommodation
answer questions or provide information about relevant restrictions or limitations, including information from health care professionals
take part in discussions about possible accommodation solutions
co-operate with any experts whose assistance is required to manage the accommodation process or when information is needed
meet agreed-upon performance standards and requirements once accommodation is provided
work with the accommodation provider on an ongoing basis to manage the accommodation process.

Service providers must:

be alert to the possibility that a person may need an accommodation even if they have not made a specific or formal request
accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
get expert opinion or advice where needed (but not as a routine matter)
take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions
keep a record of the accommodation request and action taken
communicate regularly and effectively with the person, providing updates on the status of the accommodation and planned next steps
maintain confidentiality of the person’s information
limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request
consult with the person to determine the most appropriate accommodation
implement accommodations in a timely way, to the point of undue hardship
bear the cost of required accommodation.

Sometimes, a person with a disability cannot identify that they need accommodation. Service providers must try to help a person who is clearly unwell, or is thought to have a disability. They must ask if the person has needs related to a disability and offer assistance and accommodation.

Example: A boy in Grade 2 regularly interrupts his classmates and disrupts the teacher’s lessons. When repeated reminders do not improve the problem, the teacher considers her options. Before escalating the situation, she contacts his parents to make further inquiries. Together, they arrange for an educational assessment which reveals that the boy has autism spectrum disorder. They are then able to take steps to put the appropriate supports in place to help him succeed at school.

Forms of accommodation

Many different accommodation methods and techniques will respond to the unique needs of people with disabilities. Many accommodations can be made easily, and at low cost. Where putting the best solution in place right away may result in “undue hardship” because of significant costs or health and safety factors, service providers still have a duty to look at and take next-best steps that would not result in undue hardship. Such steps should be taken

only until better solutions can be put in place or phased in.

Depending on a person’s individual needs, examples of accommodation in services may include:

several different ways of contacting a service including by phone, in person and by regular and electronic mail
extra time (for example, for school exams)
more breaks, where appropriate (for example, during a court hearing)
flexible attendance requirements, where possible, if an absence is linked to a disability
flexible rules if someone does not comply with a deadline, if the reason is linked to a disability
a quiet, comfortable space to sit
having one’s disability taken into account if it is related to behaviour that would otherwise lead to withdrawing the service or some other consequence.

(3) Provide Training , Policies and Procedures

Under the Act, service providers must make sure their organizations are free from discrimination. Organizations must take steps to address negative attitudes, stereotypes and stigma to make sure they do not lead to discriminatory behaviour toward people with disabilities or on the basis of other protected grounds in the Act.

Education on human rights works best alongside a strong proactive strategy to prevent and remove barriers to equal participation, and effective policies and procedures for addressing human rights issues that do arise. A complete strategy to prevent and address human rights issues should include:

a barrier prevention, review and removal plan
anti-harassment and anti-discrimination policies
an education and training program
an internal complaints procedure
an accommodation policy and procedure.

Relevant Provisions

Goods, services, accommodation, and facilities

(1) A person shall not, on the basis of a prohibited ground of discrimination,
(a) deny to a person or class of persons goods, services, accommodation or facilities that are customarily offered to the public; or
(b) discriminate against a person or class of persons with respect to goods, services, accommodation or facilities that are customarily offered to the public.
(2) Notwithstanding subsection (1), a limitation, specification, exclusion, denial or preference because of a disability shall be permitted where that limitation, specification, exclusion, denial or preference is based upon a good faith qualification.
(3) Subsection (1) does not apply
(a) to accommodation in a private residence, except a private residence that offers bed and breakfast accommodation for compensation;
(b) to the exclusion of a person because of that person’s sex from accommodation, services or facilities upon the ground of public decency;
(c) to accommodation where sex is a reasonable criterion for admission to the accommodation;
(d) to a restriction on membership on the basis of a prohibited ground of discrimination, in a religious, philanthropic, educational, fraternal, sororal or social organization that is primarily engaged in serving the interests of a group of persons identified by that prohibited ground of discrimination; or
(e) to other situations where a good faith reason exists for the denial of or discrimination with respect to accommodation, services, facilities or goods.
(4) Subsection (1) does not prohibit the denial or refusal of accommodation, services, facilities or goods to a person who is less than 19 years of age where the denial or refusal is required or authorized by another Act.
(5) For the purpose of this section, “accommodation, services, facilities or goods to which members of the public customarily have access or which are customarily offered to the public” include accommodation, services, facilities or goods that are restricted to a certain segment of the public.

1 Laidlaw Transit Ltd. v. Alberta (Human Rights and Citizenship Commission), 2006 ABQB 874

2 In B.M. v. Cambridge (City), 2010 HRTO 1104(Canlii)

3 Jonathon Simpson v. Oil City Hospitality Inc. 2012 AHRC 8 (Canlii)