A Toronto woman with spina bifida is filing a human rights complaint against a Toronto bar after she was allegedly refused access to the washroom.
Haily Butler-Henderson, 23, was meeting a friend for drinks at the Pentagram Bar and Grill on August 19 when she asked to use the washroom.
“The woman said, ‘No, you can’t use the washroom because it’s downstairs and I don’t want to be held liable if you fall down the stairs,’” says Butler-Henderson who walks with the help of forearm crutches.
At first, Butler-Henderson left, but she says this sort of thing has happened to her before. She has been refused apartments and jobs over liability concerns related to her disability.
“I went back inside and walked towards the washroom kind of hoping she wouldn’t notice, but she did and jumped in front of the stairwell and got in my face,” she says. Repeated efforts to reach the owner of Pentagram have been unsuccessful.
Eventually Butler-Henderson says she got to use the washroom, but the experience was enough for her to pursue a human rights complaint against the bar. Under Section One of the Ontario Human Rights Code, everyone has the right to equal treatment with regard to goods, services and facilities without discrimination on the basis of disability.
“This isn’t about money. I really want to make a show of this because this happens all the time and affects so many people,” says Butler-Henderson. “I think people think they’re being nice, but it’s really an insulting nice, and often I feel more insulted than I feel helped or cared about.”
So what are the many Toronto bars and restaurants, with washrooms in the basement, to do? Where exactly is the line between human rights and liability?
According to business lawyer Matthew Dobbie, every business owner that invites the public to a business’s premises has a reasonable responsibility to protect its patrons from harm that’s foreseeable. But in this case, reasonable means a staircase that isn’t slippery, has handrails and each step is of a uniform size and shape.
“If she had fallen and there were no handrails or one step was decidedly bigger than the others, then the business would likely be liable. But in this case, she knew the potential risks, acknowledged them and expressed a desire to go down the stairs anyway, so likely zero liability would be incurred,” says Dobbie. Besides, even if the bar was somehow liable, Dobbie recommends all businesses have liability insurance.
“Concern for someone’s safety, by assuming you know more than they do regarding their abilities, begins to limit a person’s autonomy,” says Sarah White, founder of Acede Consulting Group, an accessibility consultancy in Oshawa.
“Everyone may take some risk in walking down stairs to get to the washroom – a child, an older person, an intoxicated person – when does a business limit that access? It cannot just be because that person has a disability – that is discrimination.”
While the Accessibility for Ontarians with Disabilities Act doesn’t become fully enforceable until 2025, and only new construction or businesses undergoing extensive renovations are required to make their establishments accessible, they are required to make public policies outlining how they plan to accommodate patrons with disabilities.
White recommends businesses be aware of the level of accessibility and provide alternatives if necessary. She also says they need to be aware that people with disabilities may want to use their less-than-accessible amenities. Of course, if a business refuses to accommodate, they may be risking more than just the patronage of people with disabilities.
“The barriers faced by people with disabilities don’t just occur in a vacuum. Often, the inaccessible business doesn’t just lose their business, but the business of their friends and family too, plus those who will hear about the negative experience,” says Lorin MacDonald, the lawyer representing Butler-Henderson.
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