2015 QCCA 577, 2015 QCCA 577

Unofficial English Translation Commission des droits de la personne et des droits de la jeunesse c. 9185- 2152 Québec inc. (Radio Lounge Brossard) 2015 QCCA 577 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-023466-139 (505-53-000032-117) DATE: April 1, 2015 CORAM: THE HONOURABLE FRANÇOIS PELLETIER J.A. MARIE-FRANCE BICH, J.A. JEAN-FRANÇOIS ÉMOND, J.A.

COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE, acting on behalf of Simon Beauregard APPELLANT – Plaintiff v. 9185-2152 QUÉBEC INC., doing business as RADIO LOUNGE BROSSARD -and- BYRON FLORES RESPONDENTS – Defendants JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on February 25, 2013, by the Human Rights Tribunal, District of Longueuil (the Honourable Hélène Bouillon), dismissing the the appellant's complaint and finding that the respondents had met their duty to accommodate and did not act in a discriminatory manner. [ 2 ] For the reasons of Émond, J.A., with which Bich, J.A. agrees, THE COURT : [ 3 ] ALLOWS the appeal against the sole respondent 9185-2152 Québec inc.; [ 4 ] OVERTURNS the judgment of the Human Rights Tribunal; [ 5 ] ALLOWS in part the request of the appellant, the Commission des droits de la personne et des droits de la jeunesse; [ 6 ] DECLARES that Simon Beauregard was a victim of discrimination; [ 7 ] CONDEMNS the respondent 9185-2152 Québec inc. to pay moral damages in the amount of $2,500 with interest at the legal rate and the additional indemnity as of this judgment, plus costs here and below; [ 8 ] DISMISSES the appeal against the respondent Byron Flores, without costs; [ 9 ] For his part and for other reasons, Pelletier, J.A. would have dismissed the appeal, with costs.

FRANÇOIS PELLETIER, J.A. MARIE-FRANCE BICH, J.A. JEAN-FRANÇOIS ÉMOND, J.A. Mtre Marie Dominique Boies Drapeau Bourdeau For the appellant

Mtre Richard Ouellette Cayer Ouellette & Assoc., attorneys For the respondents Date of hearing: October 7, 2014 REASONS OF ÉMOND, J.A. OVERVIEW [ 10 ] This case raises the issue of discrimination based on the method used by a visually impaired person to palliate his handicap: this method goes by the name of "Bacchus" and is a guide dog trained by the MIRA Foundation. [ 11 ] The mere presence of Bacchus deprived this visually impaired person of free access to the main

section of the Radio Lounge discotheque and of the services available there in a manner equal to any other person. [ 12 ] Yet everyone agrees that the animal is attentive and safe in crowds and able to guide its master in public places such as commercial establishments, hotels, restaurants, theatres, cinemas and discotheques. It can find exits, stairs, and bathrooms for him. In the event of an emergency evacuation, it can lead him outside better than any person can.

As the Human Rights Tribunal pointed out, [ translation ] “Given the training they receive and the selection process they go through, guide dogs educated by MIRA behave in such a way that, even in crowds, their mere presence generates no serious or excessive risk for their own safety, that of their master, or that of anyone else". [1] [ 13 ] I will begin my analysis by taking note of what everyone should know: visually impaired persons see through the eyes of their guide dogs. Without their faithful companions, they would be reduced to groping around in the darkness.

BACKGROUND The Facts [ 14 ] In the evening of May 16, 2009, Simon Beauregard, a visually impaired person, arrived at the Radio Lounge Brossard discotheque with his guide dog, Bacchus. He was also with an old friend. [ 15 ] On this occasion, the manager of Radio Lounge, the respondent Byron Flores, refused to grant him access to the discotheque unless he agreed to leave his guide dog in the coat check. Flores justified his decision by invoking safety reasons.

He feared that the presence of a guide dog in the discotheque where more than 500 festive young adults were gathered could lead to falls, jostling, even fighting. [ 16 ] Believing that he was being discriminated against, as he has frequently gone to other discotheques without being refused access, Beauregard insisted. This led the owner of the establishment, Ahmed Zaid, to intervene. Through Flores, Zaid offered Beauregard free access to the VIP

section with his guide dog. According to the witnesses heard at trial, this VIP

section consists of loges overhanging the main

section of the discotheque, where the bars and dance floor are situated. Normally, VIP loges are available to clients who pay an extra charge to enjoy a private space while benefiting at a distance from the atmosphere of the main

section of the discotheque. The photographic evidence consisting of three photos, however, provides no indication of the actual state of these loges. [ 17 ] Beauregard felt that the proposal excluded him and that it was inappropriate and contemptuous, as it had the practical effect of isolating him from the other clients of the discotheque, alone with his guide dog and his friend. Beauregard left the premises. [ 18 ] On June 15, 2009, he filed a complaint with the Commission.

He maintained that, on May 16, 2009, he was the victim of discrimination based on his handicap and the means he uses to palliate it. [2] [ 19 ] On September 20, 2011, the Commission filed its report. It concluded that the dispute should be submitted to the Tribunal unless Radio Lounge accepted the remedy it proposed. [ 20 ] On November 18, 2011, given Radio Lounge's failure to willingly submit to the proposed corrective measures, the Commission brought an action before the Tribunal.

It argued that, on the evening of May 16, 2009, the respondents violated Beauregard's rights guaranteed by sections 10 and 15 of the Charter of human rights and freedoms , namely, the right of every person to have access to a public place and the services available therein without discrimination based on his handicap or the means used to palliate it, to wit, the assistance of a guide dog. [ 21 ] The Commission also argues that by refusing to give Beauregard access to the main

section of the discotheque with his guide dog, Radio Lounge violated his dignity, honour and reputation. [3] The judgment under appeal [ 22 ] On February 25, 2013, the Tribunal dismissed the Commission's action. [4] [ 23 ] While recognizing that Radio Lounge's refusal to allow Beauregard access to the main

section of the discotheque with his guide dog was discriminatory, it found that the refusal had a bona fide and reasonable justification based on safety imperatives.

[ 24 ] To arrive at this conclusion, it stated that it applied the analytical approach developed by the Supreme Court in Meiorin , [5] a case dealing with employment discrimination, and then repeated in Grismer , [6] which concerned discrimination in services offered to the public. [ 25 ] Its analysis proceeded as follows. [ 26 ] First, the Tribunal accepted that the grounds invoked by Radio Lounge to justify its decision – to ensure the safety of Beauregard and the clients who were on the dance floor – were rationally connected to a legitimate purpose.

In so doing, it focused its analysis exclusively on access to the dance floor: [7] [ translation ] In light of his testimony, the Tribunal finds that Zaid's refusal to allow the complainant on the dance floor with his guide dog was rationally connected to the legitimate objective of ensuring a "reasonable level of safety" for the clientele that was there, the complainant, and his dog. ... [ 27 ] In light of evidence with meagre support – three photographs of the premises at a time other than that when the events took place, and none featuring the loges in the VIP

section – it concluded that the mere presence of the guide dog on the [ translation ] "dance floor" – a contained area with dim lighting and loud music, where 500 to 600 people, some probably inebriated, were gathered – produced a [ translation ] "high" risk of falling. For that reason, it found that the decision to refuse Beauregard access to the dance floor with his guide dog was reasonably necessary.

In its opinion, the mere presence of the guide dog constituted undue hardship: [8] [ translation ] [62] At the second stage of the analysis, the Tribunal must determine whether it was reasonably necessary to prohibit Beauregard and his guide dog from going on the dance floor to ensure their safety and that of the other clients. Although the objective of ensuring the safety of the clientele is legitimate, the provider of a service to the public cannot adopt standards that are higher than what is necessary to preserve a reasonable level of safety.

As the Tribunal pointed out in Abitibi-Price inc ., a certain amount of risk must sometimes be tolerated to ensure respect for the right to equality: [ translation ] On several occasions, this Tribunal has affirmed that the mere possibility of a risk or an increased risk without regard to its seriousness or probability is no more sufficient than the potential existence of a minimal or negligible risk.

Consequently, a certain amount of risk to be determined in light of the facts of each case may prove to be acceptable to ensure recognition of the purpose of a human rights statute that is quasi-constitutional in status. [Citations omitted in original.] [ 63] Therefore, only a "serious" or "excessive" risk may be considered undue hardship justifying a violation of an equality right. … [65] That said, the assessment of the risk depends greatly on the context. In this case, Radio Lounge is a very large establishment that was full to capacity when Mr. Beauregard arrived. Between 550 and 600 people were there.

Thanks to the photographs adduced by the defendants, the Tribunal was able to see the layout of the premises and observe the density of the crowd on the dance floor from many angles. Given the high density of the crowd in addition to the dim lighting and loud music, the fact that the people on the dance floor were in constant motion, and the probability that some of them were inebriated, it was reasonably necessary in the circumstances to prevent the plaintiff from accessing it with his guide dog to ensure their safety and that of the other clients .

However well-trained the dog is, it would have been barely visible to the clients, resulting in a high risk of falling, injury and jostling. In these very specific circumstances, authorizing the presence of the guide dog on the dance floor would have constituted undue hardship. [Citations omitted – Emphasis added.] [ 28 ] Its finding implies that no measure could have been taken to allow Beauregard and his guide dog access to the main

section of the discotheque. Hence its decision to recognize access to the VIP section, which allegedly offered superior service, as an accommodation: [9] [ translation ] [68] For their part, Zaid and Flores both testified that they offered Beauregard access to the VIP zone. According to Flores's testimony, this offer was categorically refused by Beauregard. … [70] Based on this evidence, the Tribunal finds that it has been shown on a balance of probabilities that the defendants offered Beauregard access to the VIP zone and that he refused.

It also appears from the testimony of the complainant that he did not wish to go to the VIP area because he was not familiar with it and his [ translation ] "goal" was to go on the dance floor. … [72] The VIP

section offers superior service . By going there with his guide dog, Beauregard could have benefited from the same atmosphere and the same music as on the dance floor. Admittedly, it was not a [ translation ] "perfect solution", but that was not the defendants’ obligation. In such circumstances, the service provider and the client have a common duty to arrive at a reasonable compromise. It was therefore incumbent on the complainant to [ translation ] "offer his collaboration" and take time to consider the

accommodation proposed. [73] Because the defendants could not grant Beauregard's request without incurring undue hardship, and because Beauregard adopted an attitude that prevented any measure of reasonable accommodation, the action is dismissed . [Citations omitted – Emphasis added.] [ 29 ] That said, it is appropriate at this stage to point out errors committed by the Tribunal in its assessment of the evidence. [ 30 ] First, it assigns undue importance to the issue of access to the dance floor. The dispute between the parties concerned primarily access to the main

section of the discotheque where several services were offered to the clientele, including the use of the dance floor, as the three photos filed in evidence testify. [ 31 ] The Tribunal also did not acknowledge the fact that Radio Lounge in no way proved that it tried to identify the level of risk that could be tolerated and the means that might have been put in place to allow Beauregard and his guide dog access to the main section, basing itself on hypothesis instead to find that the risk was intolerable. This failure, however, explains Beauregard's decision to turn back. [ 32 ] Finally, its conclusion that the services offered in the VIP loges were superior to those offered in the main

section of the discotheque was based on extrapolation not supported by the evidence. Radio Lounge in no way established the state of the VIP loges or the services offered there. [ 33 ] I shall return to this subject. GROUNDS OF APPEAL [ 34 ] In its appeal, the Commission maintains that the Tribunal incorrectly applied the analytical framework set out by the Supreme Court in Meiorin [10] and Grismer . [11] [ 35 ] On the one hand, it argues that the Tribunal incorrectly assessed the notion of "risk" as defined by these two judgments. It alleges that: (

i) it found that the mere presence of a "high" risk may on its own justify a discriminatory measure; (ii) it applied the standard of reasonable level of safety as the legitimate objective sought, without determining beforehand what constituted an acceptable level of risk in this discotheque; and (iii) it set aside the criterion of "serious or excessive risk" accepted by the Supreme Court to assess risk, and it did so based on evidence that was impressionistic rather than objective and solid. [ 36 ] On the other hand, it argues that the Tribunal committed an error of mixed fact and law by finding that the offer to give Beauregard access to the VIP

section constituted a reasonable accommodation as defined in Meiorin and Grismer . In its view, Radio Lounge in no way proved that it had tried to accommodate Beauregard to give him access to the main

section of the discotheque with this guide dog, such that, in this case, access to a corporate loge was a solution by which it sought to circumvent its duty to accommodate. THE ISSUES [ 37 ] The appeal raises two questions: 1. Did the Tribunal correctly apply the analytical approach set out in Meiorin ? 2. If applicable, what are the appropriate remedies? APPLICABLE STATUTORY PROVISIONS [ 38 ] The applicable statutory provisions are sections 4 , 10 , 15 and 49 of the Charter of human rights and freedoms : [12]

4. Toute personne a droit à la sauvegarde de sa dignité, de son honneur et de sa réputation. 10. Toute personne a droit à la reconnaissance et à l'exercice, en pleine égalité, des droits et libertés de la personne, sans distinction, exclusion ou préférence fondée sur la race, la couleur, le sexe, la grossesse, l'orientation sexuelle, l'état civil, l'âge sauf dans la mesure prévue par la loi, la religion, les convictions politiques, la langue, l'origine ethnique ou nationale, la condition sociale, le handicap ou l'utilisation d'un moyen pour pallier ce handicap. 15.

Nul ne peut, par discrimination, empêcher autrui d'avoir accès aux moyens de transport ou aux lieux publics, tels les établissements commerciaux , hôtels, restaurants, théâtres, cinémas, parcs, terrains de camping et de caravaning, et d'y obtenir les biens et les services qui y sont disponibles. 49. Une atteinte illicite à un droit ou à une liberté reconnu par la présente Charte confère à la victime le droit d'obtenir la cessation de cette atteinte et la réparation du préjudice moral ou matériel qui en résulte.

En cas d'atteinte illicite et intentionnelle, le tribunal peut en outre condamner son auteur à des dommages-intérêts punitifs. 4. Every person has a right to the safeguard of his dignity, honour and reputation. 10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. 15.

No one may, through discrimination, inhibit the access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available there. 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.

STANDARD OF INTERVENTION [ 39 ] Before beginning the analysis, I believe it is essential to make a few remarks about the standard of intervention applicable to appeals from decisions of the Human Rights Tribunal. [ 40 ] This Court has considered this issue on a few occasions. [13] While recognizing the specialized mandate of the Tribunal, this Court applied the standard of review applicable to appeals from courts of law, that is to say, that of palpable and overriding error in the assessment of the facts and that of correctness with respect to questions of law raising an issue of significance to the legal system.

Thus, despite the specialized mandate of the Tribunal, the Court found that it does not have a monopoly over the Charter of human rights and freedoms . It noted that courts of original general jurisdiction are also frequently asked to apply it, as is this Court when such judgments are appealed. As Bich J.A. wrote in Association des pompiers de Laval v . Commission des droits de la personne et des droits de la jeunesse , the degree of expertise of the courts of original general jurisdiction in human rights cases is no lesser than the Tribunal's.

When the issue is of significance to the legal system, the consistency and harmony of the law justifies a lower degree of deference. In this case, the standard of intervention is that of correctness: [14] [ translation ] ...

Although the Tribunal has a specialized mandate, it has not in fact been assigned an exclusive mandate by the legislature, as was possible in Q , Ryan , Mattel or Proprio-Direct : anyone who feels he or she has suffered discrimination can go before courts of law instead of the complaints system established by sections 74 and following of the Charter , which is the only way the Tribunal will hear the complaint. The Committee itself is free to bring a matter before the Tribunal or not.

The degree of expertise of the courts of law in human rights matters is no lesser than that of the Tribunal, and it seems clear that, in establishing a specific course of action for victims of discrimination, the legislature did not intend to prevent recourse to the courts of law. The decisions of the Tribunal may also be appealed with leave under

section 132 of the Charter . According to

section 133, this appeal is subject to the rules of the Code of Civil Procedure. Because the Court also hears appeals from judgments rendered in this area of law by courts of first instance, it can ensure the harmonious and consistent development of this area of law, which, as in this case, concerns general questions of law that are of significance to the legal system as a whole.

Despite the existence of a privative provision protecting the decisions of the Tribunal (s. 109 of the Charter ), these considerations all clearly weigh in favour of applying a standard of intervention analogous to that applicable in appeals from courts of law, at least where questions of law of general importance are concerned. … [Citations omitted – Emphasis added.] [ 41 ] In this case, no one would seriously contest the importance of the issue raised. [ 42 ] Moreover, according to the Commission, this is the first time that a Canadian appellate court has been asked to rule on such an issue.

There can be no doubt that this is a case in which the questions of law, including the application of the analytical approach and issues concerning reasonable accommodation, are subject to the standard of review of correctness.

ANALYSIS Application of the analytical approach [ 43 ] The analytical approach to be followed in determining whether a discriminatory standard or decision is justified is well established. The approach is that set out by the Supreme Court in Meiorin. [15] [ 44 ] The method is succinctly summarized below: [ 45 ] First, it falls to the person complaining of an infringing decision to make a prima facie case establishing its discriminatory nature. Once this is established, the service provider who made the decision must show on a balance of probabilities that it has a bona fide and reasonable justification.

To do so, it must first establish that the standard is rationally connected to achieving a legitimate purpose. It must then demonstrate that the standard was adopted in good faith and the sincere belief that it was necessary to achieve this purpose. Finally, it must show that, on the facts, the standard is reasonably necessary to achieving the purpose and that it integrates the concept of accommodation.

Without accommodation, the standard cannot be justified unless the party who adopted it can demonstrate an inability to deal with the characteristics of the group to which the person concerned belongs, in particular because of a serious risk or an exorbitant cost incurred by implementing such accommodation. In other words, the lack of accommodation is justifiable only if it would incur excessive risk or excessive costs. [16] [ 46 ] In Grismer , McLachlin J. applied this method in the context of the provision of services.

She provides the following explanation of how the analytical approach functions: [17] 21 This test permits the employer or service provider to choose its purpose or goal, as long as that choice is made in good faith, or “legitimately”. Having chosen and defined the purpose or goal – be it safety, efficiency, or any other valid object – the focus shifts to the means by which the employer or service provider seeks to achieve the purpose or goal. The means must be tailored to the ends.

For example, if an employer’s goal is workplace safety, then the employer is entitled to insist on hiring standards reasonably required to provide that workplace safety. However, the employer is not entitled to set standards that are either higher than necessary for workplace safety or irrelevant to the work required, and which arbitrarily exclude some classes of workers.

On the other hand, if the policy or practice is reasonably necessary to an appropriate purpose or goal, and accommodation short of undue hardship has been incorporated into the standard, the fact that the standard excludes some classes of people does not amount to discrimination . Such a policy or practice has, in the words of s. 8 of the Human Rights Code , a “bona fide and reasonable justification”.

Exclusion is only justifiable where the employer or service provider has made every possible accommodation short of undue hardship. [Emphasis added.] [ 47 ] She notes that the accommodation requires individual assessment: [18] 22 “Accommodation” refers to what is required in the circumstances to avoid discrimination. Standards must be as inclusive as possible. There is more than one way to establish that the necessary level of accommodation has not been provided.

Failure to accommodate may be established by evidence of arbitrariness in setting the standard, by an unreasonable refusal to provide individual assessment, or perhaps in some other way. … [ 48 ] She concludes by reiterating that the failure to accommodate must be the result of undue hardship: 22 ... The ultimate issue is whether the employer or service provider has shown that it provides accommodation to the point of undue hardship. [ 49 ] It is easy to see that the third step of this method lays a heavy burden on anyone who adopts a discriminatory standard.

It requires that person to seek to accommodate, short of undue hardship, in a manner that is based not on the characteristics of the group but on the capacities of the person concerned. As McLachlin J. explains in Grismer , the duty to accommodate ensures that excluded persons are assessed according to their own personal abilities, instead of being judged against presumed group characteristics, which unfortunately too often spring from prejudice. [19] 19. Meiorin announced a unified approach to adjudicating discrimination claims under human rights legislation.

The distinction between direct and indirect discrimination has been erased. Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics.

Such characteristics are frequently based on bias and historical prejudice and cannot form the basis of reasonably necessary standards . While the Meiorin test was developed in the employment context, it applies to all claims for discrimination under the B.C.

Human Rights Code . [Emphasis added.] [ 50 ] In this case, everyone rightly agrees that there was prima facie discrimination and that it was therefore appropriate to evaluate the justification process while keeping the accommodation issue at the heart of this analysis. [ 51 ] The application of the first two stages of the method poses no real problem. [ 52 ] Radio Lounge's decision sought to achieve an apparently legitimate objective, that of ensuring the safety of the clients of the establishment. [ 53 ] The good faith of its representatives cannot be challenged.

[ 54 ] The third stage of the analysis, however, which seeks to determine whether the discriminatory decision was reasonably necessary to the achievement of a legitimate objective, in this case the safety of the clientele, and whether this decision included adequate and reasonable accommodation, appears problematic to me. [ 55 ] With respect, I find that at this stage of the analysis, the Tribunal did not appropriately apply the criteria set out in Meiorin and Grismer . [ 56 ] First, to determine whether the decision to prevent access to the main

section was necessary for safety reasons, the Tribunal did nothing more than find that the mere presence of the guide dog could create a [ translation ] "high" risk of incidents, without considering whether the evidence established that the risk was [ translation ] "serious or excessive" or even whether it existed. [ 57 ] In so doing, it found that the discriminatory decision was reasonable because it was in pursuit of a vague but legitimate objective, that of security of the clientele in general, without determining whether the risk was serious or excessive.

It thus accepted a solution that circumvented the issue without taking into account the fact that no real accommodation was seriously contemplated. [ 58 ] Moreover, assuming that there was such a risk, it did not consider whether the evidence established that Radio Lounge had tried to identify or establish any accommodation short of undue hardship that would have been able to contain this risk or even whether, hypothetically, any such measure could have been taken. [ 59 ] In other words, it merely approved Radio Lounge's approach, which did no more than propose an action that would have had the practical effect of isolating and excluding Beauregard, instead of seeking true accommodation short of undue hardship that would have allowed him and his guide dog access to the main

section of the discotheque. [ 60 ] I will explain more thoroughly. [ 61 ] Here, the analysis sought to determine whether the refusal to allow Beauregard and his guide dog access to the main

section of the discotheque was reasonably necessary to ensure the safety of the clientele and whether the proposed measure – the use of a private loge in the VIP

section – constituted appropriate accommodation in the circumstances. [ 62 ] To do so, the Tribunal had to answer the following questions: did the evidence establish that the presence of the guide dog in the main

section of the discotheque constitutes a risk compromising the safety of the clientele? If so, did this evidence show that due to [ translation ] "risks or excessive costs" – that is, the standard of undue hardship – it was impossible to accommodate Beauregard by adopting measures to allow him access to the main

section of the discotheque with his guide dog? In other words, based on the evidence, did access to a VIP loge, which had the effect of maintaining the handicapped person’s exclusion, constitute reasonable accommodation? [ 63 ] The Tribunal did not analyze these questions.

Rather, it based itself on evidence that was clearly impressionistic – the assessment of the testimony of two representatives of Radio Lounge and three photographs showing the premises crowded with people – to find that [ translation ] "the high density of the crowd in addition to the dim lighting and loud music, the fact that the people on the dance floor were in constant motion, and the probability that some of them were inebriated" [20] made it [ translation ] "reasonably necessary in the circumstances to prevent the plaintiff from accessing it with his guide dog to ensure their safety and that of the other clients". [21] [ 64 ] As though the conclusion were inevitable, it stated that "[h]owever well-trained the dog is, it would have been barely visible to the clients, resulting in a high risk of falling, injury and jostling" [emphasis added], [22] thereby justifying Radio Lounge’s decision to prevent the guide dog from entering and accepting the VIP loge suggestion as reasonable accommodation. [ 65 ] In my view, these conclusions are not based on solid, objective evidence. [ 66 ] In cases involving discrimination based on a physical or visual handicap, caution must be exercised before finding that a discriminatory standard or measure is justified simply due to a safety risk.

It is not sufficient to invoke safety or a certain risk to succeed; to paraphrase the Supreme Court in Grismer , a line must be drawn between the need to ensure such safety and the benefit of allowing a broad range of people access to a public place. [23] A risk must not be considered on its own to justify a discriminatory decision. Safety concerns may often result from perceptions that distort reality.

Hence the importance of considering only the [ translation ] "serious or excessive" risks that cannot be contained by accommodation short of undue hardship to justify a discriminatory decision or measure. [ 67 ] In this case, the notion of risk was not appropriately assessed. In addition, as the Commission points out, the assessment of this risk was based on impressionistic evidence. The evidence in no way supported Radio Lounge's concerns, or did so in such a minor way as to be inconsequential.

In some respects, it could even be said that they are the result of preconceived notions. [ 68 ] For my part, I find that the evidence in no way demonstrates that the presence of Beauregard and his guide dog in the main

section constituted in itself a "serious or excessive" risk. With respect, the only way that the evidence could lead to such a conclusion was through generalization. I repeat, in such cases, it cannot be found that there is a "serious or excessive" risk merely on the basis of impressions. [ 69 ] For example, I cannot find, as the owner of Radio Lounge suggests, that the projected reactions of certain people who might have been inebriated justified, even in part, prohibiting a visually impaired person from using his guide dog in a public place.

This is a dubious generalization. [ 70 ] At the very least, if Radio Lounge was sincerely convinced of the excessive risks associated with the presence of a guide dog in the main

section of the discotheque – for example, a risk resulting from its alleged lack of visibility or from the reaction of certain inebriated clients – it fell to the establishment to accommodate Beauregard, short of undue hardship, to mitigate these risks. [ 71 ] As I stated above, safety considerations due to risk do not eliminate the need for reasonable accommodation. [24] On the contrary, they impose on the person making a discriminatory decision the duty to implement a process, short of undue hardship, that

makes it possible to accommodate the victim. [ 72 ] In this respect, I am of the opinion that Radio Lounge did not fulfil its duty to accommodate. It has in no way proved or even tried to prove that, because of [ translation ] "risks or excessive cost", it was impossible to adopt measures to mitigate the apprehended risks and thus allow Beauregard access to the main

section of the discotheque with his guide dog. [ 73 ] Although I recognize that the event was unexpected, I find it hard to believe that the persons in authority made no attempt whatsoever to identify any such measure and were satisfied with proposing an isolating and exclusionary solution because of the method used by the handicapped person to palliate his handicap.

It seems to me that with a bit of effort and good will, they could have managed something. [ 74 ] The mere existence of some hardship is not sufficient. [ 75 ] Despite favourable appearances, free access to a VIP loge could not constitute true accommodation given the lack of evidence demonstrating that it was impossible to accommodate Mr. Beauregard in a way that would give him access to the general dance floor with his guide dog.

There is even less reason to find that this was reasonable accommodation, as the evidence reveals nothing of the layout or the state of these VIP loges , and certainly not that it was possible to enjoy better service there than in the main section, as the Tribunal states. [ 76 ] The notion that a visually impaired person does not really suffer prejudice if he or she can benefit from the atmosphere in a loge, alone with a guide dog and isolated from the other clients, appears indefensible to me. [ 77 ] Such an exclusionary measure, which has the effect of keeping the handicapped person in a state of isolation, should be envisaged only if there is a real impossibility to accommodate because of undue hardship. [ 78 ] In any event, accommodation that perpetuates exclusion should be a last resort.

Hence the importance of the duty to accommodate short of undue hardship. [ 79 ] In this case, Radio Lounge did not establish that such an exclusionary measure was justifiable. [ 80 ] In this context, Beauregard's decision to leave the premises appears understandable to me. I do not believe that it was appropriate to find that his attitude defeated any reasonable accommodation. [ 81 ] Ultimately, I find that by refusing to allow Beauregard access to the main

section of the discotheque, Radio Lounge adopted a discriminatory measure that had no real justification. The evidence does not show that it was reasonably necessary to prohibit Beauregard and his guide dog from accessing the main

section of the discotheque to preserve safety on the premises. Moreover, the evidence does not show that Radio Lounge tried to accommodate Beauregard to allow him access to the main

section without it experiencing undue hardship. Remedies [ 82 ] The Commission claims $7,500 from the respondents in moral damages and $2,500 in punitive damages. [ 83 ] It also asks that Radio Lounge be ordered to adopt an anti-discriminatory policy regarding access for handicapped persons who use guide dogs to palliate their handicap. [ 84 ] At the hearing, the Commission acknowledged that the latter request was pointless, as Radio Lounge has ceased operations. The Commission’s monetary claims still stand, however. [ 85 ] I am of the view that punitive damages should not be awarded because the Commission has not demonstrated that there was an intentional violation within the meaning of

section 49 of the Charter . [ 86 ] As for the moral damages, given the discriminatory violation of Beauregard's fundamental rights and the consequences of this violation of his dignity, I find it appropriate to award the amount of $2,500. [ 87 ] Only the respondent 9185-2152 Québec inc. is condemned to pay these damages, however, as the evidence reveals that the respondent Flores merely followed the instructions received from his superior.

CONCLUSIONS [ 88 ] For these reasons, I would allow the appeal with costs against the respondent 9185-2152 Québec inc. alone, allow in part the application of the appellant Commisison des droits de la personne et des droits de la jeunesse, declare that Simon Beauregard has been discriminated against, and condemn the respondent 9185-2152 Québec inc. to pay him moral damages in the amount of $2,500, with costs. JEAN-FRANÇOIS ÉMOND, J.A. REASONS OF PELLETIER, J.A.

[ 89 ] I have read the reasons of my colleague, Émond J.A. With the greatest respect, I must disagree. [ 90 ] The appeal before us impugns a ruling by the Human Rights Tribunal that dismissed a complaint brought by the appellant Commission against the respondent Radio Lounge Brossard. The Commission acted on behalf of Mr.

Beauregard, a visually impaired person. [ 91 ] At first instance, it had to be determined whether Radio Lounge had taken a discriminatory measure that was prohibited under the Charter of human rights and freedoms . [25] [ 92 ] At the outset, I note – and to me this appears essential to a consideration of the case from the proper perspective – that the issue was not whether a theoretical standard adopted by Radio Lounge for general application was correct.

Rather, the case required a consideration of whether a one-time decision made in immediate reaction to a specific situation was appropriate. [ 93 ] This element is rarely present in most cases that serve as jurisprudential guides in this area of law. [26] Frequently, contrary to the matter before us, such cases have involved determining the validity of a standard implemented based on an abstract analysis in the context of an incident giving rise to its application.

This distinction highlights the highly factual nature of the basis of the impugned judgment. [ 94 ] Unlike my colleague, and despite certain appearances, I find that the appeal concerns primarily the assessment of the evidence.

Therefore, an intervention is only possible if this Court determines the existence of a palpable and overriding error, unless of course an error of law has invalidated the Tribunal's analysis. [27] With respect for the contrary opinion, I am of the view that nothing here authorizes us to set aside the conclusions drawn at first instance. [ 95 ] At the outset, I must insist that the Tribunal had before it two contradictory versions from which to choose.

This is how it described the situation: [ translation ] [67] The Tribunal heard the contradictory testimonies regarding the accommodation considered by the defendants and offered to Beauregard. Beauregard testified that he was offered no accommodation beyond the fact that Flores consulted his boss about how to manage the situation and said that he would call him back within two weeks. Incidentally, Beauregard never discussed the situation himself with Zaid. [68] For their part, Zaid and Mr. Flores both testified that they offered Beauregard access to the VIP zone.

According to Flores's testimony, Beauregard categorically refused this offer. [69] The testimony of Zaid and Flores are corroborated in part by that of Mr. Cherry, who saw Flores and Beauregard speak with Zaid on the telephone. The testimony is also corroborated in part by that of Mr. Lambert, who remembers that accommodation was offered to Beauregard, although he could not remember what it was.

Moreover, the complainant himself remembers that someone offered to accompany him to the VIP section, although he does not know whether that person was an employee of the discotheque or a client. [70] Based on this evidence, the Tribunal finds that it has been demonstrated on a balance of probabilities that the defendants offered Beauregard access to the VIP zone and that he refused.

It also appears from the testimony of the complainant that he did not wish to go to the VIP area because he was not familiar with it and his [ translation ] "goal" was to go on the dance floor. [Emphasis added] [ 96 ] It was not contested that the representatives of Radio Lounge first refused to allow Beauregard's dog to have access to the establishment.

Upon analysis, the Tribunal set aside the version of the facts maintained by Beauregard and accepted the contradictory evidence that the owner of Radio Lounge, once reached by telephone, agreed to lift this prohibition while still restricting the freedom of Beauregard's dog to move around inside the premises. This was an accommodation seeking to mitigate the initial decision to prohibit access. [ 97 ] It must be observed that it was not Radio Lounge's prohibition that caused Beauregard and his dog to leave the premises.

Rather, it was Beauregard's refusal to test the accommodation proposed to allow him access to the premises, the existence of which accommodation, incidentally, he does not even recognize. [ 98 ] In addition, I note that the nature of this softening of their positioning suggests that the people responsible for Radio Lounge were not in principle opposed to the dog being inside the establishment.

What is more, the emphasis that the owner and his agents placed on the density of the crowd at the time, which in their view was a major obstacle to allowing the dog onto the dance floor, also suggests that the situation could have changed if the crowd had thinned out through the evening. [ 99 ] The reason I dwell on this aspect of the case is that in my view, the Commission's argument in appeal has the perverse effect of eclipsing the version of the facts presented by Beauregard and, above all, the spontaneous and necessarily changing nature of the decisions made by Radio Lounge, according to a version that the Tribunal recognized as true. [ 100 ] In this light, it is easier to assess the accuracy of the conclusion whereby Radio Lounge proposed accommodation that Beauregard should have considered more seriously instead of rejecting out of hand.

In my view, we cannot overstate the importance of this finding of the Tribunal, which led to a conclusion that is consistent with the teaching in McGill University Health Cntre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréa l, [28] which states: [29]

[22] However, this does not mean that accommodation is necessarily a one-way street. In O’Malley (at p. 555) and Central OkanaganSchool District No. 23 v. Renaud, (SCC), [1992] 2 S.C.R. 970, the Court recognized that, when an employer makes aproposal that is reasonable, it is incumbent on the employee to facilitate its implementation. If the accommodation process fails becausethe employee does not co-operate, his or her complaint may be dismissed. As Sopinka J. wrote in Central Okanagan, “[t]he complainantcannot expect a perfect solution” (p. 995).

The obligation of the employer, the union and the employee is to come to a reasonablecompromise. [Emphasis added] [101] In contrast, a consideration of accommodations that could have been offered to allow Beauregard unrestricted access to thedance floor is purely theoretical in the context of the facts in this case, as the parties never reached the stage of considering them or,more precisely, evaluating the appropriateness of maintaining the restrictive nature as the situation evolved. [102] This aspect of the case also provides a better understanding of why the Tribunal addressed the subject of undue hardship relatingto access to the dance floor only in the context of a basic and purely theoretical assessment of the risk.

Indeed, Beauregard's intransigentreaction prevented the situation from evolving otherwise, as it might have had he agreed to enter the establishment in the manner offered. [103] That is why the Tribunal, apparently relying on McGill University Health Centre (Montreal General Hospital),[30] expressedthe following considerations: [translation] [71] It is well established in the case law that accommodation is not a one-way street. When the service provider makes a reasonableproposal, it is incumbent on the client to facilitate its implementation.

If the client's lack of collaboration is the source of the failure ofthe accommodation process, the complaint may be rejected. Consequently, it is important to determine whether the accommodationproposed by the defendant was reasonable. The Tribunal believes that it was. [104] We should recall that the Tribunal is a body created by the Charter, which contains a provision explicitly providing for thespecialization of its constituent members: 101. Le Tribunal est composé d'au moins 7membres, dont le président et les assesseurs,nommés par le gouvernement.

Le président estchoisi, après consultation du juge en chef de laCour du Québec, parmi les juges de cette courqui ont une expérience, une expertise, unesensibilisation et un intérêt marqués en matièredes droits et libertés de la personne; lesassesseurs le sont parmi les personnes inscritessur la liste prévue au troisième alinéa de l'article62 101. The Tribunal is composed of not fewer than7 members, including a president and assessors,appointed by the Government.

The presidentshall be chosen, after consultation with the chiefjudge of the Court of Québec, from among thejudges of that court having notable experienceand expertise in, sensitivity to and interest formatters of human rights and freedoms; theassessors shall be chosen from among thepersons included in the panel provided for in thethird paragraph of

section 62. [Emphasis added] [105] The

preamble of the Code of ethics adopted under this same statute echoes this requirement:

Considérant que la Charte des droits et libertésde la personne confie au Tribunal des droits de lapersonne, composé de juges et d'assesseurs, lacharge d'entendre et de disposer de litiges enmatière de discrimination, de harcèlement,d'exploitation de personnes âgées ou handicapéeset de programmes d'accès à l'égalité; Considérant que les membres du Tribunal desdroits de la personne doivent avoir uneexpérience, une expertise, une sensibilisation etun intérêt marqués en matière de droits et libertésde la personne; Considérant que le Tribunal des droits de lapersonne doit, en respectant les principesgénéraux de justice, donner à la Charte des droitset libertés de la personne une interprétation largeet libérale, susceptible de promouvoir ses finsgénérales; Considérant que la présidente du Tribunal desdroits de la personne édicte le présent code dedéontologie.

Whereas the Charter of human rights andfreedoms confers on the Human Rights Tribunal,composed of judges and assessors, theresponsibility of hearing and deciding mattersregarding discrimination, harassment,exploitation of the elderly or handicapped andaffirmative action programs; Whereas the members of the Human RightsTribunal must have notable experience andexpertise in, sensitivity to and interest for mattersof human rights and freedoms; Whereas the Human Rights Tribunal, in keepingwith general principles of justice, must give abroad and liberal

interpretation to the Charter ofhuman rights and freedoms that is conducive tothe furtherance of the Charter's generalobjectives; Whereas the president of the Human RightsTribunal prescribes this Code of ethics: [Emphasis added] [106] I find that in this case, the Tribunal performed its task correctly. Its assessment of the evidence is not open to criticism and itslegal analysis is consistent with the applicable principles of law.

Here is a quick overview: [107] From the outset, the Tribunal accepted the argument of discriminatory treatment: [translation] [57] In light of these testimonies, the Tribunal finds that the Commission has discharged its burden of demonstrating that Beauregardprima facie suffered from discriminatory treatment within the meaning of sections 4, 10 and 15 of the Charter. ... [108] It then presented the issue to be resolved as follows: [57] ...

The issue is therefore whether the defendants considered as many accommodation measures as possible in the circumstanceswithout suffering undue hardship as a result. [58] According to the analytical framework developed for employment cases in Meiorin9 and now considered applicable in matters involving the provision of services to the public,10 the defendants had to demonstrate that the refusal to authorize the plaintiff's presenceon the dance floor with his guide dog: 1. was rationally connected to the pursuit of legitimate objectives; 2. was reasonably necessary to achieving these objectives in that it was impossible for them to deal with people with the samecharacteristics as the complainant without suffering undue hardship. __________ 9 British Columbia (Public Service Employee Relations Commission) v.

B.C.G.S.E.U., (SCC), [1999] 3 S.C.R. 3. 10 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), (SCC),[1999] 3 S.C.R. 868 at para. 19; Commission des droits de la personne et des droits de la jeunesse v.

Centre à la petite enfance Gros Bec,2008 QCTDP 14 at para. 106; Commission des droits de la personne et des droits de la jeunesse v. 142006 Canada inc. (CaverneGrecque), supra note 6. [109] After assessing the evidence adduced by Radio Lounge under the first stage of the analytical framework, the Tribunal respondedas follows: [translation] In light of his testimony, the Tribunal finds that Zaid's refusal to allow the complainant on the dance floor with his guide dog was rationally connected to the legitimate objective of ensuring a level of [translation] "reasonable safety"12 for the clientele that was there,

the complainant, and his dog. The Tribunal does not, however, accept the argument whereby the presence of the guide dog might haverepresented a risk in the event of an emergency evacuation. On the one hand, guide dogs are trained to react well in this type of situation.On the other, in such circumstances, it is precisely the absence of his guide dog that would have made the complainant more vulnerable. _________ 12 British Columbia (Superintendent of Motor Vehicles) v.

British Columbia (Council of Human Rights), supra note 10 at para. 26. [110] It then described the process it intended to follow in the second stage of analysis: [translation] [62] At the second stage of the analysis, the Tribunal must determine whether it was reasonably necessary to prohibit Beauregard and hisguide dog from going on the dance floor to ensure their safety and that of the other clients.

Although the objective of ensuring the safetyof the clientele is legitimate, the provider of a service to the public cannot adopt standards that are higher than what is necessary to preserve a reasonable level of safety.13 As the Tribunal pointed out in Abitibi-Price inc.,14 a certain amount of risk must sometimes betolerated to ensure respect for the right to equality: [translation] On several occasions, this Tribunal has affirmed that the mere possibility of a risk or an increased risk without regard to its seriousness orprobability is no more sufficient than the potential existence of a minimal or negligible risk.

Consequently, a certain amount of risk to bedetermined in light of the facts of each case may prove to be acceptable to ensure recognition of the purpose of a human rights statutethat is quasi-constitutional in status. (Citations omitted.) [63] Therefore, only a [translation] "serious"15 or [translation] "excessive"16 risk may be considered undue hardship justifying the violation of an equality right.17 ________ 13 Ibid. at para. 21. 14 C.D.P v. Abitibi-Price Inc., (QC TDP), [1997] R.J.Q. 2039 (T.D.P.Q.), 2045. 15 British Columbia (Public Service Employee Relations Commission) v.

B.C.G.S.E.U., [1999] 9 S.C.R. 79. 16 British Columbia (Superintendent of Motor Vehicles) v.

British Columbia (Council of Human Rights), supra note 10 at para. 43. 17 For an analysis of this criterion, see Christian Brunelle, "La sécurité et l’égalité en conflit : la structure de la Charte québécoisecomme contrainte excessive?" in Tribunal des droits de la personne et Barreau du Québec (ed.), La Charte des droits et libertés de lapersonne: pour qui et jusqu’où? (Cowansville, Que.: Yvon Blais, 2005) 343 at 363 et seq. [111] Here again, no error of law taints the method chosen by the Tribunal. [112] The second stage of the Tribunal's analysis involved a considered assessment of the evidence and the respective claims of eachof the parties.

It is worth noting that it was well aware that the presence of a guide dog does not in itself preclude the admission of aperson with such an animal to a discotheque.

The following excerpt of the judgment a quo illustrates: [translation] [64] In the past, the Tribunal has found that the presence of an animated crowd in a discotheque with a capacity of up to 165 people –even with the inebriation of some of the clients and the risk of breaking fragile material – did not justify concluding that the occasional presence of a guide dog in the establishment would pose excessive risks to the safety of the animal or the clientele of the establishment.18 Given the training they receive and the selection process they go through, guide dogs educated by MIRA behave themselves in such away that, even in crowds, their mere presence generates no serious or excessive risk for their own safety, that of their master, or that ofanyone else.

Also, the Tribunal believes the complainant when he says that he has gone to discotheques with his guide dog on severaloccasions without experiencing any problems. [Emphasis added] [113] Aware, however, that it must focus above all on the facts of the case, the Tribunal stated: [translation] [65] That said, the assessment of the risk depends greatly on context. In this case, Radio Lounge is a very large establishment that wasfull to capacity when Beauregard went there. Between 550 and 600 people were there.

Thanks to the photographs adduced by thedefendants, the Tribunal was able to observe the layout of the premises and the density of the crowd on the dance floor from manyangles. Given the high density of this crowd in addition to the dim lighting and loud music, the fact that the people on the dance floorwere in constant motion, and the probability that some of them were inebriated, it was reasonably necessary in the circumstances toprevent the plaintiff from accessing it with his guide dog to ensure their safety and that of the other clients.

However well-trained the dogis, it would have been barely visible to the clients, resulting in a high risk of falling, injury and jostling. In these very specific

circumstances, authorizing the presence of the guide dog on the dance floor would have constituted undue hardship. [Emphasis added] ___________ [ 114 ] In this context, was it clearly an error to infer that it was reasonable for the management of Radio Lounge to believe at first glance that Beauregard's dog would be barely visible on the dance floor? I do not believe so.

On the contrary, I believe that this inference was reasonable. [ 115 ] Was it also clearly erroneous to deduce that it was logical for the management of Radio Lounge to believe, a priori , that there was an elevated risk of falling, injury, or jostling if the people responsible for the establishment authorized the presence of a dog that would not be very visible in the middle of this dense, constantly moving crowd, when it could be taken for granted that certain participants were under the influence of alcohol?

Once again, I do not believe so, and I am of the contrary opinion that this assessment of Radio Lounge's conduct could easily find support in the evidence. [ 116 ] In my view, these two observations are immune from review. [ 117 ] Moreover, it is not important whether or not it is believed that the clients of a discotheque are theoretically able to deal with the presence of a guide dog.

The facts of the case are what count, and the evidence accepted by the Tribunal reveals that, on the evening of May 16, 2009, it was reasonable to believe that the dog would be barely visible in that context, particularly because of the size and density of the crowd and the low ambient lighting.

This justifies the conclusion that it would have been prima facie imprudent to allow the dog and the dancers crowded on the floor to be exposed to the inherent risks arising from this specific situation. [ 118 ] Above all, it is these findings of fact that are impugned by the grounds of appeal put forward by the Commission. My colleague allows this by expressing the opinion that [ translation ] "[t]he evidence in no way supported Radio Lounge's fears, or did so in such a minor way as to be inconsequential. In some respects, it could even be said that they are the result of preconceived ideas”.

He adds, [ translation ] "it cannot be found that there is a 'serious or excessive' risk merely on the basis of impressions". [ 119 ] With respect, I cannot support this approach, which contradicts inferences that are in no way tainted by palpable and overriding error. [ 120 ] Were there methods likely to make the dog visible to the dancers or to move enough participants out of this space to allow Beauregard, his dog, and the others present to enter in safety?

According to the Commission and my colleague, the Tribunal should have imposed on Radio Lounge the burden of establishing on the basis of positive evidence that there were no such methods. [ 121 ] In my view, this argument obscures the sequence of events and more particularly what I have already characterized as the spontaneous and evolving nature of the suggestions made.

The body specialized in such matters – on which the Charter confers, among other things, the mandate of assessing the facts – concluded that Radio Lounge had, in good faith, presented a compromise that was prima facie reasonable by allowing Beauregard and his dog access to the premises under certain conditions. [ 122 ] In addition, I note that the offer was for access to a spot in what was referred to as the VIP section, which was in principle reserved for clients who had paid a higher cover charge than usual. Although this is not determinative, it is clear that this proposal was not insulting in itself.

On the contrary, it offered added value intended to compensate, if only a little, for the restrictions required of Beauregard because of the circumstances. [ 123 ] For the Tribunal, it was obvious that when the accommodation was offered, it was reasonable not to move immediately on to the stage of accessing the main dance floor, since it did not appear, at least at first glance, that there were adequate methods to mitigate the degree of risk at that specific location. Indeed how could the dog be made visible or everyone’s safety reasonably protected?

I detect no palpable error in this finding, especially since I myself would find it difficult to spontaneously conceive of a procedure likely to allow this objective to be reached without resorting to draconian measures. [ 124 ] I am unable to agree with the description of the evidence adduced by Radio Lounge as impressionistic, particularly because it ignores Beauregard's hasty departure, a piece of evidence that must not be overlooked. [ 125 ] What would the management of the establishment have had to do in this context to persuade the Tribunal that their proposal was reasonable?

Should it have hurried to take multiple photos right away, to record the image of the premises crowded with people and the favourable conditions offered to the clientele in the VIP section?

The evidence reveals, on a balance of probabilities, that Beauregard did not even know what was involved and that he in no way wanted to find out. [ 126 ] Should Radio Lounge have called in one or more experts to reconstruct the events to demonstrate the probability of a fall or another unfortunate incident on the dance floor? [ 127 ] In my view, this is not the burden on a party faced with a concrete situation compelling it to make what appears to be the most reasonable decision quickly and in good faith. The Tribunal assessed the facts and found that they were sufficient to support the position of Radio Lounge.

Any intervention in this respect could in my view be justified only if the Tribunal's conclusion did not meet the standard of reasonableness. [ 128 ] In

summary, the evidence reveals that there was first an outright refusal to permit access to the establishment, which was then mitigated by the withdrawal of the prohibition on the condition that Beauregard and his dog go to the VIP section. The specialized Tribunal found that the condition imposed by Radio Lounge meant that the impairment of Beauregard's rights was minimal but that it was prima facie reasonably required to protect everyone in the very specific circumstances at that time.

But a crucial fact is that things could not have progressed any other way because Beauregard refused to seriously consider the accommodation offered initially. This is a fundamental reason for the disposition, which alone is sufficient to justify it. The Tribunal stated the following:

[ translation ] [72] The VIP

section offers superior service. By going there with his guide dog, Beauregard could have benefited from the same atmosphere and the same music as on the dance floor . Admittedly, it was not a [ translation ] "perfect solution", but that was not the defendants’ obligation. In such circumstances, the service provider and the client have a common duty to arrive at a reasonable compromise.

It was therefore incumbent on the complainant to [ translation ] "offer his collaboration" and take time to consider the accommodation proposed . [73] Because the defendants could not grant Beauregard's request without incurring undue hardship, and because Beauregard adopted an attitude that prevented any measure of reasonable accommodation, the action is dismissed . [Emphasis added] ___________ [ 129 ] In conclusion, I am of the view that there is no reason to intervene in this case because, on the one hand, the impugned judgment is not tainted by an error of law and, on the other, this Court owes deference to the findings and inferences of fact made by the Tribunal. [ 130 ] I would therefore dismiss the appeal with costs.

FRANÇOIS PELLETIER, J.A.