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Gibson v. Ridgeview Restaurant Limited o/a Gator Ted’s & Grill and Ted Kindos, 2013 HRTO 1163 (CanLII)

Summary:

In this case, the complainant, Steve Gibson has authorization from Health Canada to possess medical marijuana (an ATP). The complainant has a severe spinal cord injury for which he uses medical marijuana to deal with the symptoms of his injury. In this case it was determined that the complainant’s medical condition constitutes a disability within the meaning of the Code. Mr. Gibson was a frequent patron at the respondent restaurant “Gator Ted’s”. The owner of Gator Ted’s, Mr. Kindos was aware of Mr. Gibson’s ATP and asked that Mr. Gibson not smoke marijuana in the restaurant. This request was made out of concern for other customers and the legality surrounding the smoking of marijuana in a licensed establishment. In addition, Mr. Kindos requested that Mr. Gibson not consume marijuana within one to six feet of the restaurant’s entrance or on the licensed patio of the restaurant. Mr. Gibson was instructed to take his medication in the parking lot of the restaurant. In this case three incidents were described where it was asserted that Mr. Gibson had violated the parameters outlined by Mr. Kindos in relation to the smoking of marijuana on the premise of the restaurant.  Ultimately, Mr. Gibson was asked not to return to the restaurant as a result of smoking marijuana in close proximity to the restaurant’s entrance after being told not to. In this case it was found that the “complainant had not established that he has any disability-related need to smoke marijuana in close proximity to the restaurant’s entrance, or that the respondents’ requirement that he not do so created any disadvantage for him in relation to disability” (para 93). The respondents’ requirement that marijuana not be smoked in close proximity to the restaurant’s entrance is reasonable and bona fide. Based on these findings the case was dismissed.

Question(s) to be Determined:

1.    Was the complainant, Steve Gibson, discriminated against on the basis of disability in services, contrary to sections 1 and 9 of the Human Rights Code?

Findings:

1.    Was the complainant, Steve Gibson, discriminated against on the basis of disability in services, contrary to sections 1 and 9 of the Human Rights Code?

NO

Reasoning:

1.    In this case it was found that the complainant was not discriminated against on the basis of disability contrary to the Code. It was stated that the “complainant simply did not argue, nor did he present any evidence, that he was disadvantaged in any way by the respondents’ requirement that he not smoke marijuana in close proximity to the restaurant’s entrance. Rather, he denied that he did so. However, I have found that the complainant did smoke marijuana in close proximity to the restaurant’s entrance, after being asked not to do so, and that this is why he was ultimately asked not to return to the restaurant. In the particular circumstances of this case, I am not satisfied that the complainant has established a prima facie case of discrimination within the meaning of the Code” (para 93).

Further reiterating this point it was stated that “the respondents’ requirement that marijuana not be smoked in close proximity to the restaurant’s entrance is reasonable and bona fide. It appears from the evidence that the respondents adopted the requirement in light of legitimate concerns for their patrons, including health-related concerns, that are “rationally connected” to running a licensed bar/restaurant. It also appears that the respondents adopted the requirement in good faith, in the belief that it was necessary in light of their legitimate concerns. Lastly, having regard to all of the circumstances, and not excluding “common sense”, it appears that permitting the complainant to smoke marijuana in close proximity to the restaurant’s entrance would have given rise to undue hardship” (para 100).