Treatment of Wheelchair User in Theatre Discriminatory

Canadian Odeon Theatres Ltd. v. Huck (1985), 6 C.H.R.R. D/2682 (Sask. C.A.)

Giving two sets of reasons for its decision, the Court of Appeal unanimously allows the appeal of the Saskatchewan Human Rights Commission and Michael Huck from a decision of the Court of Queen's Bench which ruled that Huck was not discriminated against by Canadian Odeon Theatres because of physical disability.

Michael Huck relies on a motorized wheelchair for mobility. On May 16, 1980, he went to the Coronet Theatre in Regina to view a movie. He was advised by theatre personnel that he could either transfer to a seat or view the movie from the area in front of the front row of seats. Mr. Huck is unable to transfer to a theatre seat because of the nature of his disability. No space for wheelchair users was available other than the area in front of the front row of seats.

Michael Huck alleged that his treatment constituted discrimination against him because of his physical disability.

The original Board of Inquiry found in Huck's favour, ruling that discrimination had occurred. The Board of Inquiry found that the service or facility offered to the public was a movie and a place, whether seat or wheelchair space, from which to view the movie. It found that the theatre discriminated against Huck when it provided only space in front of the front row of seats for wheelchair users. The service offered to Huck was restricted and inferior to that offered to the non-disabled public.

Canadian Odeon Theatres appealed to the Court of Queen's Bench which reversed this initial decision. The Court of Queen's Bench found that the theatre had not discriminated against Huck because it had provided the same service to Huck that it provided to all other members of the public.

The Court of Queen's Bench found that there was no evidence from which the Board could infer that the theatre offered a movie and a place to view it. Rather the offer was of a movie and a seat. This offer was made to Huck; his failure to make use of this offer was the result of his inability, not the result of discrimination in the service.

The Court of Appeal rules that the nature of the service provided is a finding of fact for the Board of Inquiry to make. It finds that there was evidence before the Board from which it could conclude that the service provided was a movie and a place to view it. Consequently, the court of Appeal finds that the Board did not err in law. The determination of primary facts and the inferences drawn from them are not reviewable by the Court.

However, the Court of Appeal finds that the question of whether there was discrimination does involve a question of law and therefore there is a right of appeal on this issue.

In defining discrimination, the Court of Appeal finds that it is the consequences of the action of practices, not the motivation behind them which is important. Acts which are neutral on their face, which treat individuals in the same way, are nonetheless prohibited if they have the effect of continuing discriminatory practices.

The Court of Appeal rejects the argument that because the complainant was given the same treatment as any other member of the public in this situation, no discrimination occurred. This interpretation would render the protections against discrimination on the basis of physical disability meaningless. There would be no situation in which a disabled person could be discriminated against in the use of accommodation, services or facilities which are customarily available to the public.

The Court of Appeal finds that identical treatment does not necessarily mean equal treatment or lack of discrimination, and rules that Huck was discriminated against because the treatment he received had the effect of excluding him or restricting his opportunity to enjoy a public service in a way comparable to others because of his physical disability.

The respondents argued that to apply the provisions of The Saskatchewan Human Rights Code to this facility results in retrospective application of the statute because the theatre was constructed prior to the proclamation of the Code. Such an application would interfere with existing property rights.

The Court of Appeal also rejects this argument. Existing rights can be affected by statute without the operation of the statute being retrospective. The rights of the respondent are changed in the future. After the proclamation of the Code, the respondent cannot discriminate because of physical disability. The Code applies to all services and facilities customarily available to the public, not only to those which were constructed after proclamation of the Code.

The appeal is allowed and the decision of the Board of Inquiry is restored.

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