HUMAN RIGHTS TRIBUNAL OF ONTARIO

______________________________________________________________________
B E T W E E N:
Alexander Allarie

2010 HRTO 61 (CanLII)

Applicant

-and-

Keith Rouble and Leslie Rouble

Respondents
______________________________________________________________________

DECISION
______________________________________________________________________

Adjudicator: Leslie Reaume

Date: January 20, 2010

File Number: 2009-01239-I

Citation: 2010 HRTO 61

Indexed as: Allarie v. Rouble

______________________________________________________________________
 APPEARANCES

)
Alexander Allarie, Applicant ) On his own behalf
)

2010 HRTO 61 (CanLII)

)
Leslie Rouble and ) On their own behalf
Keith Rouble, Respondents )
BACKGROUND

[1] Alexander Allarie (the “applicant”) filed an Application under section 34 of Part IV
of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on
January 26, 2009 alleging discrimination in relation to a service on the ground of

2010 HRTO 61 (CanLII)

disability. The hearing into the Application took place on December 1, 2009.

[2] The original respondent to this Application was the Granary, a bulk and natural
food store located in Carleton Place, Ontario (“Granary”). Keith Rouble and Leslie
Rouble were the owners of the store in August 2008, when the events giving rise to this
Application occurred. The respondents indicated in their Response that they are no
longer the owners of the Granary and that the new owners did not assume responsibility
for the Application as a condition of the sale. As a result, the Application has been
amended removing the Granary and adding the Roubles as the proper respondents.

[3] There is a long and unfortunate history to this Application and it was obvious
from the outset of the hearing that this issue has engendered considerable anger,
hostility, and confusion. The respondents were particularly hostile toward the applicant,
the Tribunal and the human rights system in general. In her opening statement Ms.
Rouble expressed considerable anger that the Tribunal would “gladly entertain Mr.
Allarie’s ludicrous complaint” and outrage at being “compelled” to attend the hearing to
be “interrogated” by the government.

[4] As a result, I took some time to explain to the parties the provisions of the Code
which relate to the Application, the mandate of the Tribunal to apply a fair, just and
expeditious process in resolving Applications and the statutory requirement to provide
the parties with an opportunity to make oral submissions before the Tribunal disposes of
an Application that is within its jurisdiction. I also described to the parties how the
hearing would be conducted and reinforced that they would have a full opportunity to be
heard in relation to the circumstances underlying the Application.

[5] The hearing lasted for approximately one and a half hours. I heard evidence from
the applicant and both respondents, although it was the Ms. Rouble who gave the
primary evidence for the respondents. I also heard evidence from two witnesses for the
respondents: Ms. Robillard, a fellow merchant who witnessed a key interaction between
the applicant and respondents, and Ms. Klawitter, a customer of the respondents who

2010 HRTO 61 (CanLII)

has a visual impairment and is assisted by a service dog.

[6] This Application involves one event in early August 2008. Mr. Allarie alleges he
entered the Granary with a dog who assists him with his disability-related needs. He
alleges that he was asked to leave the store because of the presence of his dog. The
respondents say that the dog had nothing to do with the dispute and that the applicant
was asked to leave because he was behaving inappropriately toward them. While this
one event forms the basis of the Application before the Tribunal, there were previous
interactions between the parties in 2006 which assist in understanding the context of the
current allegations. As a result, both parties were permitted to describe the history of the
interactions between them despite the fact that those interactions are not the subject of
this Application before the Tribunal.

[7] For the reasons that follow, I have determined that this Application should be
dismissed. The one interaction which is captured by this Application involves a brief
incident between the parties. There is sufficient evidence to establish that Mr. Allarie
was asked to leave the store that day because of his behaviour and not because of the
presence of his dog.

[8] However, that finding, on its own, will not resolve the ongoing dispute between
Mr. Allarie and the merchants he interacts with on an ongoing basis. In my view, it is
consistent with the remedial nature of the Code and the mandate of the Tribunal to bring
Applications to a fair, justice and expeditious resolution, to provide the parties with some
guidance which may assist them in avoiding a new Application in the future.

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EVIDENCE

[9] Mr. Allarie has a Chihuahua he calls “Dee-O-Gee”. He gave evidence that he
lives with a number of physical and psychiatric disabilities including anxiety, depression,
claustrophobia, agoraphobia, and symptoms of obsessive compulsive disorder, which

2010 HRTO 61 (CanLII)

he feels are greatly improved by the presence of his dog. He acknowledges that his dog
has never been formally certified as a service dog as compared to, for example, a dog
that is trained and certified by the Canadian National Association for the Blind (“CNIB”).
In his evidence, Mr. Allarie said that he understood why people would question the role
a small Chihuahua would play in assisting him with his medical needs.

[10] Mr. Allarie gave evidence that his dog has had a significant impact on his
symptoms and that he is less stressed, more relaxed, more outgoing and has fewer
thoughts of suicide. He described the dog as assisting him with aspects of his daily
routine such as eating and going to bed at regular times as well as waking him up when
he is having a bad dream or has fallen asleep on the couch. Mr. Allarie described the
dog as “working” when it is sitting in his lap and giving him a focal point. He also
testified that he needed to have his dog with him when he shopped at the Granary.

[11] Mr. Allarie started looking into adopting a service dog in 2005 and purchased
Dee-O-Gee from Travelling Paws Kennel on July 27, 2005. He produced a copy of the
adoption agreement which describes the dog as “service dog (companion)”. He also
produced a copy of the receipt from the Corporation of Carleton Place showing that he
was not charged for a licence tag for his “service dog”.

[12] The medical documentation in support of Mr. Allarie’s evidence consisted of two
doctor’s notes. The first, dated July 28, 2005 from Dr. Murty, the applicant’s family
doctor, says simply that “Alex Allarie has a service dog for medical reasons”. The
second note dated September 11, 2006 from the same physician contains further
information. In that note Dr. Murty explains that the applicant has “(chronic mechanical)
low back pain syndrome, secondary to MVA in 1983” as well as “anxiety and depression
disorder” and that “acquisition of his service dog, Chihuahua which he calls D.O.G. will

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be of great benefit with various medical conditions described above”.

[13] Mr. Allarie also produced a letter dated March 2, 2006 from the Leeds, Grenville
& Lanark District Health Unit responding to his inquiry about the use of service dogs in
areas where food is served or sold. The letter, signed by a Public Health Inspector,

2010 HRTO 61 (CanLII)

advises that section 60(2)(b) of the Health Protection and Promotion Act, R.R.O. 1990,
Regulation 562, a copy of which was attached to the letter, “clearly states that if you can
provide or request a letter from a physician or nurse confirming your need for a service
dog then the dog is permitted in the food premises.”

[14] I mention these documents, not to suggest that they define what constitutes a
genuine service dog, but rather as evidence of what the applicant relied on in asserting
that he had a right to enter the Granary with his dog.

AUGUST 2008

[15] The allegations contained in the Application relate to one event which occurred
between the parties in August 2008.

[16] In August 2008 Mr. Allarie testified he put a “service dog” cape on his dog,
walked into the Granary and waited to be served. He saw that Mr. Rouble was in the
back room of the store. He admits that he raised his voice and said “are you going to
serve me or not?” and says that Mr. Rouble waved his hand at him in a dismissive
manner. According to Mr. Allarie, Mr. Rouble then came up to the front of the store and
asked him to leave at which point he asked Mr. Rouble for the phone and called the
police.

[17] Ms. Rouble testified that on August 1, 2008, Mr. Allarie entered her store, swore
at her, demanded service and threatened to call the police if he was denied service. Ms.
Rouble described Mr. Allarie as belligerent, aggressive and threatening and was
concerned that he was intoxicated. She testified that she quickly bagged some salt and
pepper for him and that he threw some coins at her in return. Ms. Rouble testified that

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she was terrified and that it was Mr. Rouble and not Mr. Allarie, who called the police.

[18] Both respondents gave evidence that the events of August 2008 had nothing to
do with Mr. Allarie’s dog. They testified that he was asked to leave because of his
behaviour.

2010 HRTO 61 (CanLII)

[19] Angela Robillard, co-owner of the store next door to the Granary, testified that
she observed Mr. Allarie as he approached the Granary on the day in question. She
watched him put a service dog cape on his dog and she followed him to the store. She
stood just behind Mr. Allarie who was a foot or two inside the door. Ms. Robillard heard
him demand to be served and swear at Ms. Rouble who was behind the cash. Mr.
Rouble, who was near the front door, responded that Mr. Allarie would have to leave the
store or he would call the police. According to Ms. Robillard, Mr. Allarie responded “go
ahead” and swore again at the respondents. Ms. Robillard said that she could see Ms.
Rouble hurrying behind the counter preparing Mr. Allarie’s order. She was “shocked” to
observe Mr. Allarie “wind up” and throw a handful of coins at Ms. Rouble, some of which
hit her in the face. Ms. Robillard described the female respondent as shaking and
crying. Ms. Robillard was not interviewed by the police officer when he arrived.

[20] The Tribunal also heard evidence from Noella Klawitter, who described herself as
visually impaired and assisted by a service dog. Ms. Klawitter gave evidence that the
respondents had always gone “above and beyond” in assisting her when she was in the
store. When asked by Mr. Allarie whether she had ever been asked for identification by
the respondents, she answered that she had not, although she carries identification with
her and at all times her service dog is clearly marked and harnessed.

EVENTS OF 2006

[21] Both parties gave evidence that the dispute in August 2008 was not an isolated
incident. Mr. Allarie testified that in 2006 he shopped at the Granary with his dog and
was asked by the respondents to leave his dog outside the next time he came to the
store. He responded that he had a “service dog” and showed the respondents the 2005

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doctor’s note. The next time he attempted to shop in the store with his dog Mr. Allarie
alleges that he was denied entry, and, as a result, he filed a complaint with the Ontario
Human Rights Commission under the provisions of the Code that existed at the time.
That complaint was withdrawn, according to Mr. Allarie, when he received a copy of the

2010 HRTO 61 (CanLII)

response from the respondents indicating that they would accept the dog in their store if
he showed “proper documentation” proving that the dog was a bona fide service dog.

[22] Mr. Allarie testified that he had no difficulty the next time he entered the store
sometime in October 2006. Neither respondent was in the store at the time, however a
family member who was working in the store reviewed the documentation and allowed
him to shop with his dog.

[23] Ms. Rouble gave evidence that Mr. Allarie came into the store for the first time in
February 2006. She admits that she asked him to leave his dog outside the store and
that she questioned whether he had a bona fide service dog because it was not
apparent to her that the dog was assisting with any disability-related needs. According
to Ms. Rouble the dog was not marked and was not wearing a harness or service coat
which might indicate that the dog was “working”. Ms. Rouble also gave evidence that
she was very concerned that dog was allowed to wander in the store on a retractable
leash sniffing at their bulk products.

[24] Ms. Rouble denied that Mr. Allarie ever provided her with any proof that his dog
was a service dog. She later admitted, however, Mr. Allarie had shown her the note
written by his doctor in 2005. In her view this was insufficient evidence that Mr. Allarie
had a service dog and required him to produce evidence that the dog had been trained
in the manner, for example, that dogs are trained by the CNIB. Ms. Rouble gave
evidence that, despite her concerns about the dog, on the several occasions in 2006
when Mr. Allarie attempted to shop at the Granary with his dog, he was never denied
service.

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ANALYSIS

[25] The question in this case is whether the applicant can prove that he experienced
discrimination on the basis of his disability. The burden is on Mr. Allarie to prove that he
has a disability, that his dog assists him with his disability-related needs, that he was

2010 HRTO 61 (CanLII)

treated adversely by the respondents, and that his disability was one of the factors in
the treatment he experienced.

[26] Section 1 of the Code provides that: “Everyone has a right to equal treatment
with respect to services… without discrimination on the basis of…disability.” The
respondents were of the view that the applicant was required to prove that a service had
been denied. The language of the Code is broad and includes the manner in which a
person is treated while receiving a service, even if the service is not denied.

[27] The definition of disability under section 10(1) of the Code contemplates
circumstances where a person might physically rely on an animal to assist with their
disability-related needs. Disability also clearly includes a condition of mental
impairment. There is nothing in the Code which limits the definition of a service animal
to one which is trained or certified by a recognized disability-related organization.

[28] Mr. Allarie gave evidence that he suffered from anxiety and depression disorder.
There were two medical notes filed with the Tribunal which support the applicant’s
testimony that he suffers from disabilities which are protected by the Code and that his
dog assists him in dealing with the symptoms of those disabilities. There was no
evidence called to dispute the nature of Mr. Allarie’s disabilities or his reliance on his
dog for assistance with his symptoms. The respondents simply asserted that the
Chihuahua did not look or act like a service dog.

[29] I am satisfied Mr. Allarie has established that he has a disability and his dog
assists him with his disability-related needs. It is not disputed that he was asked to
leave the store. What remains for Mr. Allarie to prove is that his disability was a factor in

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the way that he was treated in August 2008.

[30] On this issue, I found Ms. Rouble, who gave the primary evidence for the
respondents, extremely hostile and prone to exaggeration. Similarly, Ms. Robillard was

2010 HRTO 61 (CanLII)

hostile and argumentative with the Tribunal, initially refusing to comply with an order
excluding witnesses. During her testimony she made it clear that she had her own
concerns with Mr. Allarie as did several other local merchants. Her hostility toward Mr.
Allarie was palpable and, after giving her evidence and returning to her seat, she had to
be asked to stop interjecting in the proceeding to advocate for the respondents. In my
view, the credibility of both Ms. Rouble and Ms. Robillard was affected by their
approach to giving evidence before the Tribunal.

[31] By contrast, Mr. Allarie was forthright, admitted when he could not remember a
date or fact, was not prone to exaggeration and indicated that he could understand why
members of the public might have difficulty accepting his dog as a service animal.

[32] However, Mr. Allarie did admit to standing in the doorway of the store, raising his
voice to the respondents and confronting them over his perception that they were not
serving him in a timely fashion. This is not a situation where a customer entered the
store, made an attempt to shop and then was asked to leave by the merchant. By his
own admission, Mr. Allarie stood in the doorway and shouted “Are you going to serve
me or not?”. Mr. Allarie also had difficulty recalling the facts and dates in question while
he was giving his evidence which contributed to his inability to rebut the evidence of the
respondents.

[33] In addition, the police occurrence report prepared by Officer Beaton who
attended at the scene indicated that the officer spoke with Mr. Rouble and was advised
that the applicant was asked to leave the store because he was “rude and
confrontational” and because of concerns that he was impaired. While the officer was
not called to give evidence, I accept that this document was prepared
contemporaneously with the events and is broadly consistent with the respondents’

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explanation for asking Mr. Allarie to leave the store.

[34] While I believe the accounts given by Ms. Rouble and Ms. Robillard were
exaggerated, there is sufficient evidence to conclude that the applicant provoked a
confrontation with the respondents and that he was asked to leave the store as a result.

2010 HRTO 61 (CanLII)

CONCLUSION

[35] There is clearly a connection between the events of 2006 and 2008. With respect
to the events of 2006, in my view it was not unreasonable for the respondents to ask for
identification and medical documentation to support the applicant’s assertion that his
Chihuahua functions as a service dog. The dog was not marked and it was not
behaving in a manner that would make it obvious the dog was working. However, it
would be unreasonable to refuse to accept a doctor’s note, such as the one produced
by the applicant, as evidence of his reliance on a service animal. This observation is
subject of course, to the applicant conducting himself appropriately while he and his dog
are present in a store.

[36] To allow merchants to refuse service to someone with medical evidence of the
need for a service animal would leave both the merchants and their customers in an
untenable position. The merchants would be looking behind the medical evidence and
using their own observations to assess the bona fide nature of the service provided by
each animal. The customers who rely on their service animals would never be sure
which standards would be applied to them. People with less visible disabilities, including
psychiatric disabilities, could be subject to more onerous standards than others. The
circumstances of this case suggest that a balance can be struck between merchants
and their customers by permitting merchants to request medical evidence where it is not
immediately obvious that the animal is supporting disability-related needs.

[37] Context is critically important in human rights cases. In Rodrup v. J. Werner

Property Management, 2009 HRTO 1372 (CanLII), the Tribunal upheld an application
involving a small dog who provided support for an owner with a hearing impairment. In

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that case a landlord attempted to evict the owner, in part because of the dog’s barking.
In that case the applicant was able to prove that the dog’s barking was part of the
service the animal performed to assist him with his hearing impairment. As a result, the
Tribunal upheld that part of the Application.

2010 HRTO 61 (CanLII)

[38] In this Application, there is no evidence that the dog or the applicant’s disabilities
were a factor in the decision to ask him to leave the store during the incident in August
2008. I have no doubt that the overall context for the hostility between these parties
goes back to the events in 2006 when the presence of the applicant’s service dog was
clearly an issue. While the past dispute may have been part of the overall context, in my
view on the occasion relevant to this Application the applicant provoked a confrontation
with the respondents as soon as he walked into the store, and as a result, he was asked
to leave as any customer would be under those circumstances.

[39] For those reasons, the Application is dismissed.

Dated at Toronto, this 20th day of January, 2010.

“Signed By”
__________________________________
Leslie Reaume
Vice-chair

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