BOARD OF INQUIRY {Human Rights Code) Ontano IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended; AND IN THE MATTER OF the complaint by Ellen Anderson dated December 6, 1994 and the complaint by Lucia M. O'Neill dated September 14, 1995, allegingdiscrimination in the provision of services on the basis of sex. BETWEEN: Ontario Human Rights Commission Commission - and - Ellen Anderson and Lucia O'Neill Complainants - and - YMCA The ofBarrie Respondent DECISION ON IMPLEMENTATION Adjudicator: Heather M. MacNaughton Date: April 17, 2001 Board File Nos: BI-0264/99 and BI-0265/99 Decision No: 01- 007-1 Board of Inquiry (Human Rights Code) 505 University Avenue 2nd Floor, Toronto ON M5G 2P3 Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743 TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168 APPEARANCES Ontario Human Rights Commission Naomi Overend, Counsel Ellen Anderson Complainant On her own behalf Lucia O'Neill Complainant On her own behalf YMCA The of Barrie Respondent John Anderson, Counsel THE ISSUE On December 6, 2000, 1 releasedmydecision in this matter (the "Decision"). I found, based on YMCA facts agreed to by the parties, that the facilities as they existed at the Barrie constituted an infringement of the rights of Ellen Anderson and Lucia O'Neill under section 1 of the Ontario Human Rights Code R.S.O. 1990, c. H. 19 as amended (the "Code"). In the Decision, I said that the Board ofInquiry would remain seized, with respect to issues arising, until the completion ofthe construction ofa Women's Plus facility as ordered. OnFebruary 15, 2001, thehearingreconvenedbyconferencecall to deal withtwomattersraised by the Complainants and the Ontario Human Rights Commission (the "Commission"). The first matter was the failure ofthe YMCA to post the Decision as required bymyOrder, the second was YMCA the failure of the to provide architect's drawings reflecting a Women's Plus Facility comparableto that oftheMen's Plus Facility. Theparties had filedbriefs ofdocuments whichthey wishedmeto reviewandIheard submissions from Counsel fortheCommission, concurredinbythe Complainants, and from Counsel for the Respondents. For reasons that will be explained in the paragraphs that follow, this decision deals only with the first issue raisedbythe Complainants and the Commission. THE POSTING OF THE DECISION The facts with respect to this issue were not in dispute. The Facts As indicated above, theDecisionwas signedonDecember6, 2000, andreleasedtothepartiesby the Board ofInquiry on December 7. It was faxed to Counsel for both the Commission and the Respondent, and mailed to the Complainants. 1 On December 15, 2000, Ms. Anderson advised Counsel for the Commission that the decision had not been posted at the Barrie YMCA. Counsel for the Commission wrote to Counsel for the Respondent inquiring why the YMCA had not posted the Decision. He responded that he had not YMCA received a copy ofthe Decision from the Board ofInquiry and that the was waiting for an original ofthe Decision which, on receipt, they would post. YMCA Counsel forthe mistakenlybelievedthattheCommission, andnottheBoardofInquiry, had sent the copy of the Decision which he received by fax. An exchange of correspondence followed in which this misunderstandingwas clarified. The interveningholidayseason meant that the decision was not posted until January 2001. The Submissions of the Commission and the Complainants Counsel for the Commission, and the Complainants, do not suggest that the failure to post the Decision by the YMCA, or its Counsel, was intentional. Nor do they suggest that there was any deliberate floutingoftheDecisionandtheOrdercontainedinit. However,theysubmitthattheerror rendered ineffective a Communications Agreement which had been entered into by the parties separately from the agreement that led to the Decision. Further, Counsel forthe Commission submitsthatthelatepostingoftheDecisioncompoundeda disturbing trend that she observed during the course ofthe hearing. That trend, she submitted, was that the YMCA defended the non-existence ofa Women's Plus facility on the basis that women members, when surveyed, had not expressed an interest in one. In support ofthat submission, Counsel forthe Commission, referred to recent cornmunications YMCA between the and its members, and a number of public statements, which she submits, downplays theroleofthe Complainants andtheirhumanrights complaints, inachievingequalityof 2 the facilities attheBarrieYMCA. Counsel fortheCommissionsubmitsthatthesecommunications, read together, intentionally leave the impression that construction of a Women's Plus facility is proceeding at this time because "the time has come". She further submits that the evidence at the hearing does not support the YMCA's contention that it had earlier surveyed its members. The Submissions of the Respondent Counsel fortheRespondent submits thatthelatepostingoftheDecisionwas anerror. Itwasnot intended to flout eitherthe spirit, orthe intent, ofthe Commumcations Agreement orthe Decision. Counsel for the Respondent submits that the Communications Agreement was negotiated separately from the settlement that resulted in the Decision. Hence, it did not form a part ofthe settlement agreement which was incorporated in the Decision. He submits that, so long as the requirements ofmy Decision are met, I have no jurisdiction to deal with issues arising from the Communications Agreement and should not make factual findings based on evidence that had not been concluded. Counsel for the Respondent submits that it is not appropriate for me to control the communications ofeitherpartyregarding this matter. His client was, he says, entitled to develop a communications strategy with respect to the Decision, so long as it did not breach the Communications Agreement. Theyhave done so, as has the Commission and the Complainants. In that regard, he submits that the YMCA member bulletins, relied on by the Commission in supportofits submissions, areupdatebulletinsregardingtheprogress oftheconstruction. Theyare intended to elicit input into the design and are, he submits, separate and apart from the communication referred to inthe Decision and required to beplaced inthemembership newsletter. 3 The inclusion ofa synopsis ofthe Decision was apart ofmy Order, the wording ofwhich was to be agreed. I was advised that agreement was reached on the content of the synopsis in the Communications Agreement. Decision The Communications Agreement was not before me. It was an agreement executed by the parties, having binding effect as between them. I was not asked to incorporate its terms into the Decisionand, therefore, its contents do not formpartofmyOrder. As aresult, Ihavenojurisdiction to deal with the terms ofthe Communications Agreementorthe intent oftheparties with respect to it. Theonlyissueproperlybeforeme is whethertheRespondents havecompliedwiththeDecision as it related to posting ofthe Order. In the Decision I ordered: YMCA The Barrie shall communicate this decision to the membership byposting a copy of it on the Community bulletin board, located at the Key Desk, until the completion ofthe women's membership plus facility. It shall post a copy ofthis decision on thebulletinboards located inside the women's, girl's, men's and men's plus locker rooms, and on the bulletin board outside the conditioning room until YMCA April 1, 2001. In addition, theBarrie shallpublish asynopsis ofthedecision in the membership newsletter. The above communication shall be in a manner agreed to by the parties. The Decision does not require posting by a particular date. It was open to the parties to set a posting deadline afterreceipt ofthe Decisionbut theydid not do so. I think it likelythattheparties intended that the Decisionbeposted as soon as possible afterits release. Further, it appears thatthe Complainants wished it to be posted during the holiday season to coincide with the initial press interest followingtherelease oftheDecision, andwhenalargenumberofmembers wouldbe likely to seeit. However, whilethis mayhavebeen the spirit oftheiragreement, itdidnot formpartofthe Order. 4 To the extent that the Complainants, and Counsel for the Commission, object to the YMCA's suggestionthatwomenmembers were surveyedbeforethe 1994renovations, Imadeno evidentiary findings inthatregard. Itwas clearfromthetoneofthecross-examinationthatthepartiesdifferedon how they characterized the contact the YMCA Board and management staff had with women members before the 1994 renovations. The YMCA felt that it had surveyed its women members with respect to the wish for a Membership Plus facility. It was equallyclearthat the Complainants andtheCommissiondisagreed. As aresultofthesettlementthatwas achievedbetweenthepartiesI YMCA was notrequired to, and did not, make anyfactual findingas to whetherthe had "surveyed" its women members in 1994. Havingissued theDecisionbased on an agreed statementoffacts, priorto thecompletionofthe evidence and argument, itwouldnotnowbe appropriate formetomake anyfindings inthatregard. Sufficeitto saythatI found,based ontheagreementoftheparties thatthe facilities as theycurrently YMCA exist, are discriminatory. The is requiredto remedythat discrimination andmust do so in a timely fashion. Havingheard all ofthe submissionsandreviewedtherelevantcommunications, togetherwiththe wordingoftheCommunicationsAgreement, I findthattherewasnobreachoftheOrderandthatno further action is required bythe YMCA. The YMCA has offered to continue posting the Decision until May 2001, a one-month extension from the expiry ofthe original Order, and I considerthat a good-faith attemptbythe YMCA to remedythe difficultycreatedbytheirerror. I am satisfied that no order is required with respect to this matter. THE FAILURE TO PRODUCE ARCHITECT'S PLANS REFLECTING COMPARABLE FACILITIES The second issue concerns the decision ofthe YMCA not to renovate the Men's Membership Plus facility at this time. The facts with respect to this issue are not in dispute. The Facts YMCA Duringthe settlementdiscussionbetweentheparties the producedplans foraWomen's Plus facility. Thesettlementagreementwasbasedonthoseplansandthatagreementwasreflected in the Decision which requires that: YMCA The Barrie will build a women's membership plus change facility, comparable in size and amenities to its revised men's membership plus facilities. The parties shall have the right to review the plans for these facilities, and forward any concerns about the parity ofthe facilities to this Board, (emphasis added) Following the settlement agreement, and the issuance of the Decision, revised plans were producedbytheYMCA's architects whichdidnotinclude alterationsto the sizeof, oramenities in, the Men's Plus facility. The Submissions of the Commission Counsel for the Commission submits that it was clear, when the settlement agreement was negotiated, thattheBarrieYMCA, inadditionto constructingaWomen'sPlus facility,wasgoingto renovatethe Men's Plus facility. Onseeingtherevised plans, Counsel fortheCommission, andthe Complainants, expressed concernthatthe space allotted fortheWomen's Plus facilitywas lessthan that availableto theMen's Plus facility. Theysubmittedthatthe facilitieswerenot comparableand, hence, did not meet the requirements ofthe Decision. Further, Counsel forthe Commission submits thattheMen's Plus facilityis a 1978 facilityand cannot, withoutrenovations,be comparable, insofaras amenities, to thenewWomen's Plus facility which will bebuiltto currentdayspecifications. She submits thatdifferences intheageandquality ofthe amenities were all intended to be rectified by one renovation. 6 The Complainants filed areport from ROMA, a design firm, which compared the difference in spaceallocatedto theexistingMen's Plus andproposedWomen's Plus facilities and concludedthat there was approximately 12 percent less space available for women. The report also raised traffic flow concerns aboutthedesignandconcerns aboutthelimitednumberoftoilets. All oftheseissues lead the Complainants, and Counsel for the Commission, to submit that neither the space nor the amenities in both facilities are comparable. The Submissions of the Respondent Counsel for the Respondent acknowledges that there has been a change in the plans being proposed by the YMCA. However, he submits that the gross floor area ofthe addition for the Women's Plus facilityis 240 squaremeters andthattheexistingMen'sPlus facilityhas agrossfloor area of245 square meters. These dimensions are, he submits, comparable. Further, Counsel for the Respondent submits that the current plans achieved comparabilityby increasing the size ofthebuilding footprint for the Women's Plus facility, ratherthan taking space awayfrom the Men's Plus facility as was originallycontemplated. This proposal is, he submits, in accordancewiththeintentoftheDecisionwhichwas notmeanttobeinflexibleas evidencedbythe parties retaining the ability to seek my guidance and, ifnecessary, supplementary orders. DIRECTION Duringthe courseoftheargument, itbecame apparentthatthedrawingsthathadbeenreviewed by ROMA, and commented on in its report, were not the most recent drawings. Further, there existedintheevidence, anumberofdifferent calculationsoftheareaavailabletoboththeMen'sand proposed Women's Plus facilities. Some ofthe plans and documents referred to 'gross floor area' 7