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November 24, 2015

$19 golf cart fee is not unfair to disabled member (who still golfed all season), Tribunal finds


golf

Upset by the escalating cost of power cart rentals at Deer Ridge Golf Club, Larry Helm took the club to the Human Rights Tribunal.

Mr. Helm must use a power cart when he golfs because of a disability. But there is an extra charge, on top of the membership fees, to rent a cart. He argued that there should not be a “surcharge for accessibility.”

So far so good, right?

The Tribunal didn’t bite. The evidence was that Mr. Helm and his wife had lots of disposable income. Each paid $50,000 for an initial buy-in of shares in the club, plus annual dues, capital fees and guest fees of roughly $5400 plus HST each, annually. In other words, it was an expensive pursuit, and the Helms were able to pay.

To rent a golf cart at Deer Ridge cost $14 in 2009. Prior to that, members could get a $2 discount if they proved that the cart was required because of their disability, but the program was discontinued because of member abuse. The cost of renting a cart went up sharply in subsequent years, as high as $19 by 2013.

The Tribunal chose to give effect to the final words from this passage in the Supreme Court of Canada’s decision in Andrews v LSBC:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society. [Emphasis added]

It found as a fact that the cost of the rental had not limited Mr. Helm’s use or enjoyment of the golf course. In fact, he had golfed over 100 times in 2012 and 2013.

The Tribunal appeared to have difficulty squaring the complaint over a $19 golf cart with the fact that the Helms had spent six figures in fees and shares at the club since they’d joined. Bring me an applicant, the Tribunal seemed to be saying, whose access was limited not by the $50,000 buy-in but the $19 golf cart, and I’ll find the fee discriminatory.

There is an old Latin maxim, De Minimis Non Curat Lex — the law does not concern itself with trifles. The golf club argued that “the applicant’s pursuit of a discount on his golfing expenses through a human rights application trivializes the purposes of the Code.”

The Tribunal did not expressly endorse this argument. But in its final analysis, it was unwilling to accept that the “disadvantage” of the golf cart fee amounted to a “substantive disadvantage” under the Code. And that shows a failure of the applicant to demonstrate the seriousness of his complaint.

With a different set of facts — where the fee represented an actual barrier to participation— the outcome would likely have been different. Perhaps a future case will help practitioners distinguish this case from other, more workaday scenarios.

Millard & Company specializes in employment and human rights law and has represented both applicants and respondents in many cases before the Ontario Human Rights Tribunal.

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Photo by Zach Dischner used under cc licence

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