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B.C. Human Rights Tribunal rules former Mountie was discriminated against by 3rd Port Alberni bar

Part of the interior of Creekers Pub in Port Alberni, B.C., is seen in this image from the Ocean Marina Hotel's website. (oceanmarinahotel.ca) Part of the interior of Creekers Pub in Port Alberni, B.C., is seen in this image from the Ocean Marina Hotel's website. (oceanmarinahotel.ca)
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For the third time in as many years, a retired RCMP officer has won a Human Rights Tribunal complaint against a bar in Port Alberni that refused to serve him because he rolled a joint inside the establishment.

Robin Hayes was previously awarded $1,500 in 2021 and $2,500 in 2022, after filing HRT complaints against the Port Sports Pub and the Blue Marlin Inn, respectively. 

In the latest case, Hayes filed his complaint against the Creekers Pub, a bar located within the Ocean Marina Hotel.

In a decision issued Sept. 28, tribunal member Amber Prince awarded Hayes $10,000 as compensation for injury to his dignity, feelings and self-respect. 

All three of Hayes' complaints deal with incidents that occurred in 2019. The Port Sports Pub incident occurred in May of that year, the Blue Marlin Inn incident in July and the Creekers Pub incident on two separate occasions, first in February and again in May.

In each case, the RCMP veteran was asked to leave after rolling a marijuana cigarette while inside the venue in question.

Hayes suffers from post-traumatic stress disorder and has been prescribed medical cannabis to treat it. The HRT has repeatedly held that PTSD is a mental disability protected by the provincial Human Rights Code.

DETAILS OF THE LATEST CASE

Hayes complained to the tribunal about two specific incidents at Creekers Pub. The first happened on Feb. 26, 2019, and the second happened on May 6 of the same year.

On both occasions, Hayes rolled joints inside the pub to smoke outside, and the pub's manager Colby McMeekin told him he was not allowed to do that. On the second occasion, McMeekin also told him he was permanently banned from the pub for doing so, according to Prince's decision.

To prove discrimination, Hayes was required to show that he has a disability, that he was adversely affected by the pub's treatment of him and that his disability was a factor in that treatment.

Prince had little trouble finding that the first criterion was met in the case, noting that Hayes showed McMeekin his prescription for medical cannabis when she first raised a concern about him rolling a joint in the pub, and that he has been found to have a disability in two previous HRT decisions.

Adverse impact was also easily demonstrated, as both incidents involved a denial of service to Hayes.

On the question of whether the adverse impact was related to Hayes' disability, the pub argued that it was not.

"The respondents dispute that Mr. Hayes had a disability-related need to prepare his cannabis at the pub," Prince wrote. "They say that Mr. Hayes could have met his disability-related needs by preparing his cannabis for use in advance. Therefore, the respondents submit that Mr. Hayes has not shown a sufficient connection between his disability and being evicted and barred from the pub."

In response to this, Hayes argued that preparing his cannabis in "real time" is necessary to manage his supply and pace himself, especially when he is also consuming alcohol.

Prince accepted this argument, noting that another medical cannabis user who testified during the hearing also reported preparing his cannabis as "need be," and that relying on pre-rolled joints would lead him to smoke his supply faster.

The tribunal member also rejected the pub's assertion that Hayes had been ejected and banned for being "rude and belligerent," rather than for his cannabis preparation.

Prince's decision quoted several text messages between McMeekin and pub owner and general manager Dean Johnson, all of which referenced Hayes' cannabis use, rather than his attitude or language.

"He’s rolling a joint at the bar again!!" reads one such message from McMeekin to Johnson quoted in the decision.

"Mr. Johnson responded: 'tell him he’s barred if he doesn’t roll in the bathroom.'"

Prince concluded that Hayes and McMeekin had a "heated" exchange on May 6, after he was given his permanent ban, but did not find that his conduct was rude and belligerent.

"I note that even if I found that Mr. Hayes was rude and belligerent, and that was a factor in him being ejected and barred from the pub, his cannabis preparation was also clearly a factor," Prince wrote.

TREATMENT WAS NOT JUSTIFIED

In their defence, McMeekin, Johnson and the pub argued that their conduct was justified because Hayes' cannabis preparation was bothering other patrons and they provided a reasonable accommodation that Hayes refused to accept: namely, that he roll his joints in the bathroom.

Prince rejected the first argument, noting that the respondents had provided no evidence showing that Hayes' cannabis preparation was inhibiting the pub's stated goal of "providing a safe, respectful, and inclusive environment for customers and employees" to the degree that it needed to be banned.

"I appreciate that open cannabis preparation and use in public spaces, especially in 2019, may have still felt shocking or illicit to some segments of society – including the respondents’ other pub patrons," the tribunal member wrote.

"While understandable, such feelings, on their own, do not reflect the state of law, and are not a rational basis for the respondents’ cannabis rule."

Similarly, Prince found the pub's supposed accommodation – that Hayes could roll his joints in the bathroom – to be lacking.

"This accommodation banishes Mr. Hayes to the bathroom as through preparing his medication is something he needs to hide," Prince wrote. "I further agree with Mr. Hayes that this accommodation has the effect of perpetuating stigma about him because he is a person with a disability who medicates with cannabis."

In determining that a $10,000 award was appropriate in the case, the tribunal member looked at other recent awards in cases where businesses were found to have discriminated against customers with disabilities. She concluded that Hayes' request of $10,000 was within the range of such cases.

In a footnote, she also acknowledged Hayes' two previous HRT awards, but said they are "not comparable for the purpose of assessing an injury to dignity award because Mr. Hayes sought much smaller injury to dignity amounts in those cases."

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