Tuesday, 23 April 2013

Interesting Unreasonableness Decision from Alberta

Here is an interesting case from Alberta, where administrative law and disability law intersect: Voropanov v Alberta (Municipal Affairs), 2012 ABQB 551.

The applicant is the operator of a private club in Calgary: the Oak Leaf. The club offers various services, including a Russian banya, which appears to be a particularly intense type of sauna. Because of the intensity of the sauna experience, the club does not allow individuals with health problems to become members. One excluded group is wheelchair users. It was agreed between the parties that this exclusion was lawful.

But the applicant ran into trouble with the Chief Building Officer, who insisted that it install a wheelchair-accessible washroom facility. Under the Alberta Building Code, requirements can be relaxed if they are unnecessary or due to extraordinary circumstances. The applicant applied for a relaxation of the washroom requirement*, but was refused.

There was some correspondence between the parties, with the respondent having the final word:
11.              The Administrator’s final response, sent on January 17, 2012, indicated that the additional information, namely the club policy membership restrictions, was insufficient to meet the conditions for relaxation of the requirement.  The Administrator added that, “[t]he specific requirements are necessary as club policy could be changed and it is our opinion that there are areas where persons with physical disabilities would possibly be present.” He again cited his reasons for finding that the accommodation was possible within the spatial limits of the club. On this basis, the Administrator denied the request for relaxation.
Strekaf J. accepted the reasonableness of the respondent's conclusion that no extraordinary circumstances existed. However, she struck down the decision on the basis that the respondent's conclusion on necessity was unreasonable:
30.      Turning next to the Administrator's consideration of whether the barrier-free requirements were unnecessary, the Administrator relied on several findings of fact in reaching the conclusion that the requirements were necessary. In particular, he stated in his final letter to the Applicants that it was his opinion that there are areas in the club where persons with physical disabilities could possibly be present. However, the evidence before the Administrator supports an opposite finding of fact - namely that if individuals who utilize wheelchairs cannot become members, and the Oak Leaf is accessible only to members and not to the public, then an individual who uses a wheelchair would not appear to have the opportunity to utilize the facility.
31.   The Administrator also found that the barrier-free requirements were necessary because club policy could change in the future. However, the information before the Administrator included submissions from the Applicants that the Oak Club would not permit individuals who they perceived to have specific a health risks associated with the use of the sauna to become members. This was the only evidence before the Administrator with respect to the policy and it does not support the Administrator’s findings that the Applicants might decide in the future to change their policy.
Strekaf J. concluded that the conclusions were not based on any evidence.

This seems wrong to me, especially if the respondent takes the general view that accommodation of individuals with disabilities is paramount. First, even if wheelchair users were not permitted to become members of the club, surely other wheelchair users could from time to time need or want to access the club. For example, presumably building inspectors are not barred from employment as building inspectors if they need to use a wheelchair. They could reasonably require access to the building in the course of their employment. Other professionals similarly could need to use toilet facilities while on the premises. Failing to provide such facilities would presumably constrain the professional choices of individuals with disabilities. Thus the fact that the club is members only does not necessarily make the respondent's conclusion unreasonable.

Second, it seems rather a lot to demand factual evidence of the potential for a change in policy. Surely the point is that a business which wishes to change its policy to permit wheelchair users would be less likely to do so if it did not have wheelchair-accessible facilities. Similarly, a future purchaser of the premises would be less likely to provide services to individuals with disabilities if the premises were not already wheelchair-accessible. Common sense, not evidence, supplies the basis for the respondent's conclusion on this point. 

That the respondent might not have articulated these possibilities clearly should not be fatal to the reasonableness of the decision: the Supreme Court of Canada has emphasized the need for reviewing courts to pay attention to the reasons that may be offered in support of a decision.

* It is not entirely clear from the judge's reasons whether an entire washroom, or just a shower, had to be wheelchair-accessible; I doubt that the issue was simply a shower so have proceeded on the basis that an entire washroom was mandated.

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