BC Human Rights Tribunal

Anderson and others v. Vancouver Board of Parks and Recreation and another, 2024 BCHRT 334

Date Issued: December 4, 2024
File(s): CS-000448/20880

Indexed as: Anderson and others v. Vancouver Board of Parks and Recreation and another, 2024 BCHRT 334

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

BETWEEN:

Graeme Anderson, Robert Best, Rick McCormack, John Richards, Alma Ross

COMPLAINANTS

AND:

Vancouver Board of Parks and Recreation and City of Vancouver

RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Kathleen Smith

Counsel for the Complainants: Clea Parfitt and Phil Rankin

Counsel for the Respondents: Jennifer Devins and Jaime Hoopes

Dates of Hearing: March 11, 14, 15, 16, 21, 22, 23, 24, 29, 30, 31, April 1, 4, August 8, 9, 10, 11, September 12, 13, 14, 20, 21, 27, October 5, November 7, 8, 29, 30, December 1, 2022, and January 4, 2023.

Written Submissions Completed: October 12, 2023

I INTRODUCTION

[1] In this decision, I address five human rights complaints arising in the context of the COVID-19 global pandemic. The complaints concern changes to motor vehicle access to Stanley Park, Vancouver’s largest public park, and Beach Avenue, the Vancouver roadway that runs parallel to the beaches and parks along English Bay and into Stanley Park.

[2] Graeme Anderson, Robert Best, Rick McCormack, John Richards, and Alma Ross are the complainants. In this decision, I use the term “Complainants” when I refer to them collectively. The Complainants identify as persons with disabilities that impact their mobility. Three of them say their mobility is also impacted by their advanced age. All the Complainants say they require a motor vehicle to access Stanley Park and Beach Avenue.

[3] At the outset of this decision, I emphasize that the complaints before me are individual in nature and are not brought on behalf of all seniors or all persons with disabilities impacting their mobility. Each of the Complainants filed their own complaint, and the Tribunal later joined the five complaints for procedural efficiency reasons because there is overlap in facts and issues.

[4] The complaints are brought against two respondents: the Vancouver Board of Parks and Recreation [ Park Board ] and the City of Vancouver [ City ]. In this decision, I refer to the Park Board and the City together as the Respondents.

[5] The allegations against the Park Board relate to traffic pattern changes implemented in Stanley Park from April 2020, through 2021. During that period, the Park Board temporarily closed Stanley Park’s two-lane perimeter road to private vehicles, and later, reallocated one lane of the perimeter road and certain parking areas to create a temporary bike lane. The bike lane on Park Drive was removed in the fall of 2020 and reinstalled in the spring of 2021. All the Complainants say that changes implemented by the Park Board over this entire period negatively impacted their ability to access and enjoy Stanley Park.

[6] The allegations against the City relate to traffic pattern changes implemented along Beach Avenue during the same period. In April 2020, the City closed the eastbound lane of Beach Avenue between Park Lane and Hornby Street and reallocated the lane and some parking areas to install a temporary bike lane. The bike lane on Beach Avenue was in place from April 2020, through 2021 and beyond. The Complainants allege that the reduction to a single traffic lane and associated loss of parking negatively impacted their ability to access and enjoy the views and amenities along Beach Avenue and English Bay.

[7] In short, the Complainants allege that the changes implemented by the Park Board and the City following the onset of the COVID-19 pandemic disproportionately impacted them as persons with disability- and age- related mobility limitations and amount to a violation of s. 8 of the Human Rights Code . They further allege that the negative impacts on their ability to access Stanley Park and Beach Avenue by motor vehicle could have been avoided had the Park Board and City properly consulted with seniors and persons with disabilities.

[8] Although the complaints are individual, the Complainants seek remedies that are systemic in nature, including orders that the impacted roads and parking be restored to the conditions existing before April 8, 2020; and that the Respondents undertake other steps including hiring external consultants with expertise in accessibility, providing staff with human rights training, conducting an accessibility audit, and committing to certain planning processes before making future changes that may impact the accessibility of Stanley Park and Beach Avenue.

[9] The Respondents deny discriminating against the Complainants and argue that none of them have met their burden to prove discrimination under the Code . In the alternative, they argue that any negative impacts the Complainants experienced were justified considering the context of the COVID-19 pandemic at the time, including the temporary state of emergency. The Respondents also argue that the evidence before the Tribunal shows that they continuously increased and improved motor vehicle access through accessibility considerations and consultations following the most acute period of the COVID-19 pandemic.

[10] The Respondents dispute that any remedies are warranted based on their position that there has been no discrimination. They also argue that any alleged impacts regarding access to Stanley Park have since been ameliorated, and that many of the remedies sought are beyond the scope of the complaints and the evidence before the Tribunal.

[11] I heard this matter over thirty days and the parties introduced extensive evidence and made comprehensive submissions.

[12] In this decision, I consider whether the evidence supports a finding of discrimination for each of the Complainants. I look at their specific and individual circumstances and experiences, including their usage of the public spaces at issue, and their mobility. I also consider if and/or how the specific changes to motor vehicle access that occurred during the relevant periods impacted each complainant. Where I find discrimination, I next consider whether the evidence supports a bona fide reasonable justification.

[13] I apologize to the parties for the delay in issuing this decision.

II PRELIMINARY ISSUE: APPLICATION TO FILE A FURTHER SUBMISSION

[14] At the conclusion of the hearing, the Tribunal set a schedule for written final submissions. The schedule involved three rounds of submissions: the Complainants’ final submission, the Respondents’ response, and the Complainants’ reply.

[15] After reviewing the Complainants’ reply, the Respondents applied to file a further submission, attaching a brief sur-reply.

[16] The Tribunal has discretion to accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in a reply: Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24; Rule 28(5). A party who wants to apply to make further submissions must immediately notify the Tribunal and file the application within one week of the reply: Rule 28(5).

[17] The Respondents filed their application and further submission within the required timeline.

[18] The sur-reply addresses two discrete issues.

[19] First, the Respondents seek to address a decision relied on by the Complainants in their reply. The case at issue ( Hale v. University of British Columbia Okanagan (No. 5) , 2023 BCHRT 121) was issued by the Tribunal on August 29, 2023, approximately one month after the Respondents filed their response submission. In these circumstances, I am satisfied that fairness requires that the Respondents have an opportunity to address this decision by way of sur-reply.

[20] Second, the Respondents seek to address pinpointing errors raised by the Complainants in their reply. The Respondents agree that their response submission contained certain inadvertent pinpointing errors. They ask the Tribunal to consider the corrected references, including references to exhibits, as set out in the sur-reply. I am satisfied that allowing the Respondents an opportunity to correct minor referencing errors is fair in all the circumstances.

[21] For the above reasons, I allow the sur-reply and confirm that I have considered it along with the other submissions in reaching my decision.

III PRELIMINARY ISSUE: DEATH OF TWO COMPLAINANTS

[22] In September 2024, counsel for the Complainants wrote to the Tribunal sharing the very sad news that Alma Ross and Rick McCormack had passed away. In that correspondence, counsel expressed the view that the Tribunal must provide a final decision in relation to all the Complainants, including those now represented by their respective estates.

[23] In response, counsel for the Respondents sent correspondence extending condolences and expressing the view that the law is settled that the Tribunal is without jurisdiction to the decide the complaints of Ms. Ross and Mr. McCormack. The Respondents rely on British Columbia v. Gregoire , 2005 BCCA 585 [ Gregoire ] and Lovado v. BC Ministry of Public Safety and Solicitor General (No. 2) , 2020 BCHRT 25 [ Lovado ] at para. 34.

[24] Counsel for the Complainants subsequently advised that they take the view that Gregoire is no longer good law and that Lovado is distinguishable. The Tribunal allowed the Complainants to provide a brief submission on why Gregoire and Lovado do not apply in the circumstances of this case and advised the parties that that it would contact them if more submissions were required, including from the Respondents.

[25] In brief, the Complainants argue that Gregoire and Lovado are no longer good law. Regarding Gregoire , the Complainants argue the statutory framework has changed since that decision was issued, relying on what is now section 150 of that Wills, Estates and Succession Act [ WESA ] that deals with proceedings by and against estate. The Complainants argue that the language of s. 150 is now broad enough to include a proceeding under Code and therefore, the personal representatives of Ms. Ross and Mr. McCormack are entitled to the same rights and remedies to which the deceased person would have been entitled to, if living. Regarding Lovado , the Complainants argue that the Tribunal did not address the change to WESA and therefore the same argument applies.

[26] Ultimately, I have concluded that it is not necessary to decide the jurisdiction issue. This is because neither Ms. Ross nor Mr. McCormack have proven discrimination, and I have not ordered any remedies. Assuming without deciding that the Tribunal has jurisdiction, I would have dismissed their complaints in any event.

[27] That said, the Complainants argue that in all the circumstances of these cases, receiving reasons is important. I agree. For that reason, I issue full reasons for each of the Complainants, including Ms. Ross and Mr. McCormack.

IV DECISION

[28] For the reasons that follow, I dismiss all the complaints.

[29] I summarize my reasons as follows:

[30] I find that, with the exception of Dr. Richards, the Complainants have not met their burden to prove discrimination. Specifically, I find that Graeme Anderson, Robert Best, Rick McCormack, and Alma Ross have not established that they experienced disability-related adverse impacts in connection with services provided by the Park Board or the City during the relevant period.

[31] Regarding Dr. Richards, I find discrimination when he was unable to visit Stanley Park at all between April 8 and June 22, 2020, including one time he was turned away. However, I am satisfied that the Park Board’s decision to temporarily close Stanley Park to private motor vehicles over those 10 weeks was justified in the unique circumstances of the COVID-19 pandemic. Where I find a bona fide reasonable justification, I must dismiss the complaint.

V WITNESSES AND EVIDENCE

[32] Twelve witnesses testified at the hearing.

A. Witnesses for the Complainants

[33] Seven witnesses testified for the Complainants, including four out of the five Complainants.

[34] Graeme Anderson, Robert Best, Rick McCormack, and Dr. John Richards each gave evidence on their own behalf. Alma Ross did not participate in the hearing; instead, her daughter, Alaura Ross, gave evidence on her behalf.

[35] In this decision, I refer to Alaura Ross by her full name to distinguish between mother and daughter who share the same last name. Alaura Ross is not a complainant or a representative complainant. All information in this decision regarding Ms. Ross is based on Alaura Ross’ testimony. Alaura Ross says that Ms. Ross did not participate in the hearing due to physical and cognitive impairments, including dementia.

[36] Virginia Richards is married to Dr. Richards. She gave evidence in support of Dr. Richard’s complaint, including about their use of Stanley Park and Beach Avenue.

[37] At the time of the hearing, Peter Brown was the Co-Chair of the City’s Persons with Disabilities Advisory Committee [ PDAC ]. He is not a complainant. Mr. Brown gave evidence in support of the Complainants, including about the Park Board and City’s consultation with PDAC during the period of changes to Stanley Park and Beach Avenue.

B. Witnesses for the Respondents

[38] Five witnesses testified for the Respondents, including four from the Park Board and one from the City.

[39] Malcolm Bromley was the General Manager [ GM ] for the Park Board for ten years, including in March 2020 when a state of emergency was declared in the City and the Province in response to the COVID-19 pandemic. Mr. Bromley retired on May 31, 2020, and had no further involvement with the Park Board or Stanley Park. Mr. Bromley’s evidence focused on the original decision to temporarily restrict parking, then motor vehicle access in Stanley Park.

[40] Cheryl Chan worked for the Park Board as the Manager, Executive Office, and Board Relations at the relevant time. Ms. Chan’s evidence focused on matters related to Park Board meetings, including policies, procedures, communications, access, and record-keeping.

[41] Emily Dunlop is a registered landscape architect. She works for the Park Board. At the time of the hearing, she held the position of Senior Park Planner in the Park Planning and Development Department. Ms. Dunlop was involved during various stages of the changes to Stanley Park. She was the lead for the Park Board’s temporary traffic management plan implemented in Stanley Park between June and September 2020. Ms. Dunlop’s evidence was extensive and covered events from March 2020 through 2021, including the planning processes associated with temporarily closing Stanley Park to motor vehicles, implementing and refining the partial reopening to motor vehicles, dismantling of the bike lane and its reinstallation in 2021. Ms. Dunlop also testified about her more limited involvement with the City’s changes to Beach Avenue.

[42] Brian Gould is a professional engineer. He works for the City. At the time of the hearing, he held the position of Civil Engineer II – Transportation Design. He was the lead for the City’s Beach Avenue project. Mr. Gould’s evidence focused on the planning process for the Beach Avenue changes, the limited advice he provided to the Park Board when it partially reopened Stanley Park to motor vehicles, and his greater involvement with the 2021 changes in Stanley Park, including the reinstallation of the bike lane.

[43] Shira Standfield previously worked for the Park Board as a Planner II. She left her position in July 2020. Ms. Standfield was not directly involved in the changes to Stanley Park. Her evidence focused on informal communication she had with Park Board staff in the spring of 2020, including questions about her lived experience as a wheelchair user. Ms. Standfield no longer works for the Park Board.

VI BACKGROUND AND CONTEXT

[44] In this section, I provide an overview of the context in which the complaint allegations arise.

A. Stanley Park

[45] Internationally renowned, Stanley Park spans approximately one thousand acres in the heart of Vancouver and is a designated public park under the Vancouver Charter. It is mostly forested, surrounded by water, and has many different attractions, amenities, and scenic destinations. Stanley Park is ringed by a seawall. The seawall path is divided into two sections, one for pedestrians and a parallel section for cyclists. The seawall path varies in width at different points around the park.

[46] Stanley Park Drive [ Park Drive] is a two-lane roadway that runs the inside perimeter of the Park. It is mostly one-directional throughout the Park.

B. The Park Board

[47] The Park Board is an independent board under the Vancouver Charter . It is comprised of seven elected Commissioners.

[48] The Park Board is a policy board not an operational board. This means that the Park Board Commissioners vote on policy and represent the public, then give direction to the General Manager, who oversees the staff who operationalize the Park Board’s policies.

[49] Park Board Commissioners meet regularly and there are several types of meetings. Regular Board meetings are open to the public, but the Commissioners do not hear from speakers. Members of the public can send written correspondence for the Commissioner’s consideration at a Regular Board meeting. Committee meetings are open to the public and members of the public can request to speak at a Committee meeting. Committee meetings generally precede the Regular Board meeting. Special Board meetings are open to the public and members of the public can request to speak. Special Board meetings are usually called when there is a topic that is expected to generate significant public interest.

C. Beach Avenue

[50] Beach Avenue is part of the City’s road network. Apartment buildings and businesses line one side of Beach Avenue. The other side of Beach Avenue provides access to four parking lots along English Bay, serving the parks and beach areas. Beach Avenue also provides access to the Aquatic Centre and other amenities such as concessions, swimming, and recreation areas.

[51] Prior to the changes implemented during the COVID-19 pandemic, Beach Avenue provided one of two main entrances/exits from Stanley Park.

[52] A seawall path runs parallel to the scenic drive along Beach Avenue and connects to the Stanley Park seawall. Like the seawall in Stanley Park, the seawall that runs parallel to Beach Avenue is also divided into two sections, one for pedestrians and one for cyclists.

D. Persons with Disabilities Advisory Committee

[53] PDAC is one of several advisory groups constituted by the City. PDAC’s mandate is to advise the City and the Park Board on enhancing access and inclusion for persons with disabilities to fully participate in City services and civic life. PDAC can pass motions which are directed to City Council or the Park Board setting out their statement or recommendations with respect to a specific topic.

TIMELINE OF KEY EVENTS

[54] To put this decision in further context, in this section I provide a high-level view of key events. This is not a complete account of what occurred from March 2020 through 2021, or a recitation of all the evidence before me.

A. March and April 2020

[55] On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic.

[56] On March 16, 2020, BC’s Provincial Health Officer [ PHO ] issued an order prohibiting gatherings of more than fifty people. The expiration date of the order was May 30, 2020.

[57] On March 17, 2020, the PHO declared the COVID-19 pandemic to be a regional event for purposes of the Public Health Act .

[58] On March 18, 2020, the BC government declared a state of emergency under the Emergency Program Act .

[59] On March 19, 2020, the City declared a state of emergency under the Vancouver Charter . On the same date, the City implemented an Emergency Operations Centre.

[60] In response to the declaration of a state of emergency and the PHO order, the Park Board and the City took immediate steps as part of their own COVID-19 response, including closing, or limiting public access to facilities such as community centres, pools, fitness centres, ice rinks, and golf courses, as well as libraries, theaters, and events at sports fields and parks. This included attractions in Stanley Park, such as the Aquarium, concessions, and restaurants.

[61] On March 20, 2020, the City shut down all restaurant table service and the Park Board closed all playgrounds.

[62] On March 22, 2020, the Park Board closed parking lots at its most high-traffic parks and beaches across the City, including Kitsilano Beach, English Bay, Queen Elizabeth, Jericho, Locarno, Van Dusen Botanical Garden, and Stanley Park. The Park Board communicated to the public that it had observed people driving to these locations and congregating in close proximity to each other.

[63] The Park Board took other steps including removing volleyball nets and basketball hoops, closing dog parks, skateboard parks and tennis courts, as well as removing beach logs. The Park Board also undertook an education campaign which included posting signs, issuing public communications, and using Park Ambassadors and Rangers to encourage the public to comply with public health orders while using parks and beaches.

[64] The Park Board contemplated a complete closure of Stanley Park and the seawall if the public did not comply with the health orders including the need for physical distancing. However, the Park Board’s stated goal at the time was to keep beaches and parks open, recognizing the importance of outdoor space in people’s overall health and wellness.

[65] In this same time period, schools in BC had suspended in-class learning indefinitely.

[66] On March 31, 2020, Mr. Bromley, the Park Board GM, decided that the Park Board would temporarily close Stanley Park to motor vehicle traffic. His stated purpose was to create more space on the seawall to allow park users to follow physical distancing rules since the volume of visitors in the park was still high despite earlier measures. The plan at the time was to temporarily move cyclists off the seawall and onto Park Drive. He said that the priority at the time was to reduce congestion and crowding in Stanley Park to prevent the spread of COVID-19.

[67] While emphasizing that the priority was public health and safety, Mr. Bromley also indicated that he saw an opportunity to pilot a car-free Stanley Park. His comments from that time suggest that there was a potential for a car-free Stanley Park in the future, a car-free park has environmental benefits, and the pandemic presented an opportunity to learn and have a broader conversation about how people move through Stanley Park.

[68] On April 6, 2020, Mr. Bromley informed the Park Board Commissioners about the plan to close roads in Stanley Park “to decrease public visitation and enable increased physical distancing in response to the COVID-19 pandemic.” On the same day he sent a similar notice to the City’s Mayor and Council.

[69] On April 8, 2020, the province closed all provincial parks in response to the COVID-19 pandemic.

Stanley Park Complete Road Closure

[70] On April 8, 2020, Park Board staff closed both lanes of Park Drive to private motor vehicle traffic. Park Drive became a standalone bike path separate from the seawall. While cycling was initially still permitted on seawall, cyclists were encouraged to use Park Drive to provide more space on the seawall pathways for pedestrians to spread out. The bike route on Park Drive was intended to be safe for all cyclists of all ages and abilities.

[71] Vehicle access to Stanley Park was controlled by closing the vehicle entrances at Georgia Street, Beach Avenue, and the Stanley Park causeway. Physical barriers and checkpoints were installed and managed by Park Rangers, a security company, and support from the Vancouver Police Department. The Park Board also created and installed signs to support the closure and traffic management.

[72] The Park Board developed a pass system for stakeholders located in Stanley Park, including businesses like the Aquarium that had to continue to feed animals and receive deliveries.

Beach Avenue Lane Closure

[73] In conjunction with the Stanley Park road closure, the eastbound lane of Beach Avenue was repurposed for walking and cycling on April 9, 2020. The City’s notice to the public stated that the goal was to give residents of the West End neighbourhood room to safely access the outdoors. Adjacent portions of Davie Street and Morton Avenue were closed as part of the road reallocation.

[74] Similar to the Park Board’s message, the City’s communication to the public encouraged people to visit their local parks, noting that the Stanley Park seawall and English Bay areas are “very crowded.”

B. May and June 2020

[75] On May 6, 2020, BC announced its “Restart Plan” which involved gradually lifting COVID-19 restrictions in phases. Phase 2 would begin in mid-May permitting small social gatherings, opening of provincial parks for day use, and opening of more non-essential businesses in keeping with safe operations plan. In a news release, the Premier also indicated that a small number of parks that attract large crowds, or where reopening would pose a health risk to nearby communities, would remain closed.

[76] The Park Board Commissioners held a Regular Board meeting on May 11, 2020. The minutes from that meeting indicate that Park Board staff made a presentation to the Commissioners on the situation in Stanley Park. There was discussion at the meeting about the need for vehicular access to support partners in Stanley Park, and a concern about the ongoing exclusion of residents and visitors with mobility challenges.

[77] On May 19, 2020, phase two of the province’s Restart Plan began. Parks, beaches, and outdoor spaces were listed as sectors that could now reopen under enhanced protocols. Around the same time, discussions were underway at the Park Board about returning motor vehicles to Stanley Park.

[78] During a meeting of the Park Board’s senior leadership team on May 20, 2020, staff presented several options for how to reopen Stanley Park to motor vehicles. The senior leadership team ultimately preferred the option of a partial reopening using a “laned approach”, where private vehicles would be allowed in the left lane of Park Drive, and cyclists in the right lane. The stated goal was to increase access to Stanley Park while still maintaining space for park visitors to physically distance themselves. The Complainants dispute that this was the goal and allege that the Park Board prioritized preserving the cycling facility that it had created on the roadway. I will return to this disagreement later in this decision.

[79] On May 24, 2020, the Park Board reopened parking at Vancouver beaches. However, parking remained closed at the lots in Stanley Park and English Bay due to the continued restriction on motor vehicle access in Stanley Park and along Beach Avenue.

[80] At the Regular Board meeting on May 25, 2020, staff provided an update to the Commissioners on the short- and long-term planning for the Stanley Park road reallocation. Two Commissioners gave notice of a motion at this meeting entitled, “Exploring Options to Reduce Motor Vehicle Traffic in Stanley Park.” The motion would be discussed and voted on at the next meeting on June 8, 2020.

[81] On June 3, 2020, Park Board staff presented an update to the senior leadership team on the implementation of an interim traffic plan for vehicles and bikes using the laned approach. The presentation set out information including impacts to parking during three phases. The impacted parking areas included Prospect Point, the Teahouse and Third Beach, as well as Second Beach.

[82] At the June 8, 2020, Regular Board meeting, the Commissioners’ agenda included voting on the Stanley Park motion on notice (i.e., to explore options to reduce motor vehicle traffic in Stanley Park). As set out earlier, regular meetings are open to the public to observe but members of the public are not entitled to speak at regular meetings. The public can, however, submit written comments, which they did before the June 8 meeting. The minutes from that meeting show that the public sent 153 pieces of correspondence regarding that motion.

[83] One of the pieces of correspondence addressing the motion on notice came from PDAC. PDAC asked the Commissioners to forward the motion to Committee to allow for further discussion and public comment. They also asked that Stanley Park be reopened to its pre-COVID-19 access, that PDAC be consulted, and that one paragraph of the motion be amended to make specific reference to persons with disabilities and mobility issues.

[84] Mr. Rankin, co-counsel for the Complainants, also sent a letter in advance of the meeting expressing a concern about the decision to continue the road closure and the impact on persons with disabilities and seniors.

[85] Alaura Ross sent a letter expressing similar concerns.

[86] Although the public cannot speak at Regular Board meetings, several seniors and persons with disabilities gathered outside the Park Board’s office on June 8, 2020. They hoped to get the Commissioners’ attention and convey the message that the Park Board should reopen Stanley Park to motor vehicles. Of the Complainants, Mr. Best and Mr. Brown attended.

[87] At the June 8, 2020, meeting, Park Board staff made a presentation to the Commissioners entitled “COVID-19 PANDEMIC – Parks & Recreation Reopening & Recovery Update.” A Commissioner requested to refer to motion to committee to allow the public to speak to it. That motion was defeated. A Commissioner then moved to amend the motion to incorporate specific references to persons with disabilities and PDAC. The Commissioners then voted in favour of the amended motion after discussion and debate. The amended motion directed Park Board staff to explore the long-term feasibility of reducing motor vehicle traffic in Stanley Park, including but not restricted to, reducing roadways to single lanes while maintaining access to the park, and increasing accessibility for those with disabilities. The amended motion specifically identified PDAC as a group to include in the consultation process. The Commissioners also amended the motion to include a specific reference to persons with disabilities as requested by PDAC. The study referred to in the June 8, 2020, motion is later referred to as the Stanley Park Mobility Study.

[88] On June 14, 2020, two Commissioners submitted a Special Board meeting request and a motion to take immediate steps to reopen Stanley Park to its pre-COVID transportation and access plan. The Special Board meeting took place a few days later, on June 18, 2020. As set out above, members of the public can register to speak at a Special Board meeting.

[89] On June 18, 2020, the Commissioners considered the motion to reopen Stanley Park to its pre-COVID state. Over one hundred members of the public registered to speak, and the GM’s office received 310 pieces of written correspondence. During the meeting, the Commissioners heard from forty-seven speakers, which included Mr. Anderson, Mr. Brown on behalf of PDAC, and Mr. Rankin, co-counsel for the Complainants. Due to the high number of registered speakers, the Commissioners voted to reduce speaker time from five to three minutes and extended the meeting by one hour to 11 p.m., as permitted by their procedure by-laws. Because Alaura Ross was registered in a later group, she ultimately was not called upon to speak. Mr. Best attempted to register to speak but was inadvertently missed in the registration process.

[90] After hearing from the public on the original motion, a Commissioner introduced a substitute motion, which the Commissioners then debated and voted on. The public did not speak to the substitute motion. The approved substitute motion directs Park Board staff to:

… continue to pursue the re-opening of Stanley Park as presented in the COVID-19 Pandemic – Parks & Recreation Reopening & Recovery Update on June 8, 2020, and that the detailed plan outlined at the Board Briefing held on June 18, 2020, which is being developed in collaboration with park partners to ensure vehicle access to all park facilities, be implemented on an urgent basis.

C. Stanley Park Partial Reopening with Single Lane for Motor Vehicles

[91] Between June 19 and June 22, 2020, Park Board staff implemented the first phase of a temporary traffic plan with the “laned approach.” Not all parts of Stanley Park were open and accessible to motor vehicles during this phase. For this reason, I refer to it as the partial reopening.

[92] Starting on June 22, 2020, one lane of motor vehicle traffic and some parking areas were closed to create a temporary bike lane. Closed parking lots included Ceperley Park, Third Beach, and Second Beach. The easternmost tip of Stanley Park also became inaccessible to motor vehicles, including Brockton Point where motor vehicles were diverted into the feeder road east of the Totem poles due to the narrow width of Park Drive in this area. Angled street parking in the area north of Lumberman’s Arch to Pipeline Road was also reallocated for the bike lane route. The parking lots at the Teahouse and Prospect Point were only partially open because bicycles were being rerouted through the parking lots.

[93] Throughout the summer of 2020, the Park Board increased the level of vehicle access and parking. By August 2020, the Park Board reported that all areas of Stanley Park were accessible by vehicle except for Brockton Point and the Third Beach parking lot. With respect to accessible parking, Ms. Dunlop reported to PDAC on August 4, 2020, that:

Of the 48 accessible parking stalls in Stanley Park:

• 40 accessible stalls are still available (83%)
• 8 accessible stalls are not available (17%)
• 5 new temporary accessible stalls were created (10%)
• Details of changes/access.

[94] In late August 2020, the Park Board developed a plan for the removal of the temporary bike lane in September 2020, with a specific date to be determined.

[95] In late August 2020, the Park Board also implemented a four-week public survey between August 25 and September 20, 2020 [the Survey ]. Results of that Survey were tabulated and put into a report and shared with the Park Board in November 2020. The Survey inquired into residents’ experiences in Stanley Park of having one lane designated for traffic and one for bicycles.

[96] In the meantime, on September 10, 2020, PDAC passed a motion in relation to Stanley Park. The motion recommended that:

Stanley Park be fully reopened to its level of accessibility prior to April 8, 2020, including the two travel lanes to vehicles, in order to re-establish full access for persons with disabilities and seniors to all areas, services and facilities of the park.

Vancouver Park Board return all accessible parking stalls within the park to their pre-April 8, 2020 locations in order to comply with the City of Vancouver’s commitment to accessibility.

Vancouver Park Board engage in a fulsome consultation with the Persons with Disabilities Advisory Committee and the Seniors’ Advisory Committee, prior to pursuing any changes to the accessibility of Stanley Park for persons with disabilities and seniors, including changes in the number of parking spots.

[97] On September 18, 2020, the Park Board announced that Stanley Park would reopen the seawall to cyclists and reinstate full motor vehicle access to both lanes on Park Drive, except for a short section between North Lagoon Drive and Park Lane. The Deputy GM stated that this decision was made in part due to the seasonal decline in visitation to Stanley Park, meaning the demand for space to physical distance was declining, making the risk of transmitting COVID-19 lower.

D. Two traffic lanes restored – except at Ceperley Park

[98] On September 26, 2020, the Park Board removed the temporary bike lane. Cyclists returned to the seawall, and two lanes of motor vehicles access were restored on Park Drive.

[99] The only exception to the restoration of parking and full motor vehicle access was at Ceperley Park between North Lagoon Drive and Park Lane, including the parking lot near the Ceperley washrooms. The Respondents say this was delayed in order to coordinate with the City’s closure of Beach Avenue. For the same reason, there continued to be no way for motor vehicles to exit Stanley Park onto Beach Avenue. This configuration remained in place until the spring of 2021.

[100] In the fall of 2020, the Survey was still underway. Park Board staff presented the Survey results and data to the senior leadership team on November 18, 2020, and later to the Commissioners at the November 23, 2020, Regular Board meeting where the Commissioners discussed the results of the Survey. The Survey received over 10,000 responses. The presentation cited “Key Takeaways” as including:

• Majority of respondents enjoyed the temporary changes in Stanley Park and would like to see changes in the future.
• Overall, the “car free” experience was enjoyed by the majority of respondents.
• More data is needed.

[101] The presentation also indicated that there was a significant opportunity to pilot what might not have been otherwise possible and that they had gained a significant amount of knowledge that will be useful for future studies in the short and long term.

[102] The next steps identified in the presentation included working closely with those with specific mobility needs and collecting more and broader data.

E. Eastbound Beach Avenue remained closed

[103] While the Park Board removed the temporary bike lane on Park Drive, the City maintained the bike route on Beach Avenue.

[104] The City similarly conducted a feedback survey in September and October 2020, to gather input about the configuration of Beach Avenue and seawall path in that area.

F. 2021 Bike Lane in Stanley Park

[105] At the February 22, 2021, Regular Board meeting, a Commissioner put a motion on notice that would direct Park Board staff to reinstall a temporary bike path on Park Drive in Stanley Park until October 31, 2021. That motion cited several reasons including the City’s commitment to fight climate change and reduce carbon pollution, the June 2020 motion to reduce motor vehicle traffic in Stanley Park, ongoing COVID-19 restrictions, and the opportunity to collect more data.

[106] On March 7, 2021, PDAC sent a letter to the Commissioners addressing the motion on notice. In the letter, PDAC raised a concern about using the City’s climate emergency plan to justify denying accessibility rights. PDAC requested that the Park Board not make changes to the accessibility of Stanley Park, including full access to all parts of the park and all accessible parking without prior and fulsome consultation with PDAC and not before the Mobility Study has been completed.

[107] At a Park Board meeting that spanned March 8 to 10, 2021, the Commissioners passed the motion to implement a temporary bike path for 2021. The motion states that the Park Board will direct staff to:

… plan for and implement a temporary bike path on Park Drive in Stanley Park dedicated to cyclists, with an aim to have it in use as soon as is operationally reasonable, and to remain in place until approximately October 31, 2021.

[108] The motion also called for staff to apply learnings from the 2020 laned approach and communicate and consult with the appropriate City advisory committees including PDAC and the Seniors Advisory Committee.

[109] On March 11, 2021, the Park Board officially announced the plan to implement a temporary bike lane on Park Drive for 2021.

[110] On May 3, 2021, Park Board staff provided an update to the Commissioners on the plans for implementing the temporary bike lane on Park Drive as set out in the motion approved on March 10, 2021. The plan included a phased approach, mobilization of a project team including support from Transportation Design experts from the City’s Engineering Services, and a consulting engineer who specializes in traffic design for all modes.

[111] The 2021 installation of the bike lane was phased, with mid-May, mid-June, and mid-July goals. In-depth discussions took place regarding designs to address issues related to the horse and carriage, Prospect Point, the Teahouse, and access to the Ceperley Park washroom and parking lot.

[112] The first part of the bike lane was installed in May 2021, on the west side of Stanley Park from Pipeline Road, focusing on pinch point areas. The seawall was still open to bikes during this phase. The second phase was implemented in late July covering the full perimeter of Stanley Park. The third phase involved improvements such as replacing cones with concrete barriers and other materials.

[113] The Ceperley Park parking lot was opened to motor vehicle traffic on July 28, 2021, and has been open since.

[114] The Park Board did not remove the bike lane in the fall of 2021 as it did in the fall of 2020.

[115] At the November 15, 2021, Regular Board meeting, staff presented a report on the 2021 temporary bike lane. The improvements listed for 2021 included all parking lots open, vehicular access to Brockton Point and the Lawn Bowling club, seawall open to bikes, improved pull-out spaces for the horse and carriage, concrete barriers installed, line painting, speed bumps, and extra signage. During the meeting, the Commissioners voted in favour of a motion to extend the timeframe for the temporary bike lane on Park Drive until the Stanley Park Mobility Study is complete, and staff report back with long-term recommendations.

[116] The temporary bike lane stayed in place until a new motion was passed in December 2022. On December 5, 2022, newly elected Park Board Commissioners voted to restore the pre-COVID parking and road access in Stanley Park. The bike lane on Park Drive was subsequently removed.

[117] Throughout this period, the bike lane on Beach Avenue remained in place, and the eastbound lane of Beach Avenue closed.

G. Summary

[118] Before turning to my analysis of the complaints, I summarize the key time frames and corresponding changes.

[119] Stanley Park:

• April 8 to June 22, 2020: I refer to this as the complete closure , when Stanley Park was closed completely to private motor vehicles.
• June 22 to September 26, 2020: I refer to this as the partial reopening , when Stanley Park was partially reopened to motor vehicles with one lane of Park Drive and certain parking areas were reallocated for a dedicated bike lane.
• September 26, 2020, to May 2021: I refer to this as the full reopening , when the Stanley Park bike lane was removed, and two lanes were restored for motor vehicles on Park Drive except for a small area of the roadway at Ceperley Park.
• May 2021 to December 2022: I refer to this as the 2021 bike lane , when the Stanley Park bike lane was reinstalled in phases resulting in one lane for motor vehicles and one lane reallocated for a dedicated bike lane on Park Drive.

[120] The key timeline for Beach Avenue is April 9, 2020, onward when the eastbound lane of Beach Avenue was reallocated for a dedicated bike lane and some parking areas were impacted.

VIII ANALYSIS

A. Legal Principles

[121] Section 8 of the Code prohibits the denial of a service customarily available to the public because of a person’s protected characteristics, which include physical disability and age.

Test for discrimination

[122] There is a two-part test for discrimination. First, to prove discrimination under s. 8 of the Human Rights Code [ Code ], a complainant must prove on a balance of probabilities that:

• They have a protected characteristic under the Code (in this case, physical disability or age and physical disability).
• They experienced an adverse impact with respect to a service customarily available to the public (in this case, the service related to public road and parking access).
• The protected characteristic was a factor in the adverse impact.

Moore v. British Columbia (Education) , 2012 SCC 61 [ Moore ] at para. 33.

[123] Second, if a complainant establishes these three elements, then the burden shifts to the respondent to prove that their conduct was bona fide and reasonably justified.

[124] To prove a bona fide and reasonable justification [ BFRJ ] a respondent must prove that:

• It adopted a standard for a purpose rationally connected to the function being performed.
• It adopted the particular standard in an honest and good faith belief that it was necessary for the fulfillment of the purpose.
• The standard adopted is reasonably necessary to accomplish the purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individuals sharing the characteristics of the claimant without incurring undue hardship.

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 S.C.R. 868 [ Grismer ] at para. 20.

[125] I begin with an overview of the parties’ positions on the elements of the Complainant’s case and my findings based on all the evidence and arguments before me.

Protected Characteristic

[126] Each of the Complainants say they have limited mobility to an extent that they require a motor vehicle to access Stanley Park and/or Beach Avenue. All five Complainants identify their protected characteristics as physical disability, and three also include the ground of age.

[127] The Respondents do not dispute that each of the Complainants has a disability under the Code . However, they take the view that the Complainants have not provided sufficient evidence to understand the specific nature of their mobility limitations. This argument relates primarily to the Complainant’s ability to access certain areas of Stanley Park. I will return to this issue later in the decision.

[128] The Complainants acknowledge that not all persons with disabilities have the same needs, including with respect to mobility. Below I summarize the evidence relating to the nature of the Complainants’ disabilities and mobility limits.

[129] Mr. Anderson was in his sixties at the time of the hearing. He experienced a spinal cord injury that paralyzed him at a young age. Through rehabilitation, he regained the ability to walk. Mr. Anderson had back surgery in 2019 and says that during the pandemic he experienced a deterioration in his mobility. At the time of the hearing, he explained that he now uses two canes to walk and can only walk short distances. Mr. Anderson has a SPARC parking permit that allows him to park in designated spots for persons with mobility limitations.

[130] Mr. Best was in his fifties at the time of the hearing. He was diagnosed with multiple sclerosis [ MS ] about 30 years ago. In 2020, he used a manual wheelchair and says that he would roll about 10 blocks on a good day. Since 2020 his condition has changed, and he started using a power wheelchair. Mr. Best has a SPARC parking permit.

[131] Mr. McCormack was 76 years old at the time of the hearing. His medical history includes heart and kidney failure. He said that at the start of the pandemic he could walk about four blocks. In April 2020, Mr. McCormack lost two toes, and he became more reliant on being driven places due to his limited walking ability. In April 2021, Mr. McCormack had part of his leg amputated. At the time of the hearing, he was able to walk about one block with a walker and his spouse drove him places. Mr. McCormack had a SPARC parking permit.

[132] Dr. Richards was 87 years old at the time of the hearing. He has a history of many medical conditions including a hip replacement, foot and heart problems, including a pacemaker. He says that in early 2020 he was becoming less mobile, and his walking capacity was limited. He has a SPARC parking permit.

[133] Ms. Ross was 87 years old at time of the hearing. Her various health conditions included Alzheimer’s disease and Chronic Obstructive Pulmonary Disease. She was dependent on her family for her activities of daily living. According to Alaura Ross, Ms. Ross’ condition was better at the start of the pandemic than it was at the time of the hearing. She used a walker inside the house and a wheelchair outside and could take a few steps using her cane. She had a SPARC parking permit

[134] Before I move to the next part of my analysis, I pause to address the parties’ disagreement on whether there is sufficient evidence for the Tribunal to make a finding regarding discrimination based on age.

[135] There is no dispute about the advanced age of Mr. McCormack, Dr. Richards, and Ms. Ross. At the time of the hearing, Mr. McCormack was 76, Dr. Richards was 85, and Ms. Ross was 87.

[136] The Complainants argue that it is critical to recognize the role of aging in disability for the three Complainants advancing their complaints based on the intersecting grounds of age and disability,

[137] The Respondents agree that age and physical disability can be inter-related but dispute that the evidence presented at the hearing establishes that any of the Complainants’ physical disabilities are progressive with age or that they have age-related mobility limitations. The Respondents argue that Alaura Ross was the only witness who raised the issue of age. They say that was in relation to her mother’s mobility, and that evidence was hearsay.

[138] I have carefully reviewed the evidence of Mr. McCormack, Dr. Richards and Alaura Ross (on behalf of her mother, Alma Ross) regarding any age-related mobility limitations. On the whole of their evidence, I accept that each of them has various medical conditions impacting their mobility, some of which are likely progressive with and/or related to age. I agree that the Complainants could have provided more robust evidence to support their age-related allegations. However, in circumstances where there appears to be at least some interplay of age and disability, I decline to dismiss the age-based allegations for a lack of evidence when age is more than likely than not to have played a role in the relevant mobility limitations.

Adverse Impact and Connection

[139] Considering the issues of impact and connection to disability, I look at the individual circumstances of each of the Complainants at the relevant time, including the evidence regarding their mobility limitations, patterns of use of Stanley Park and/or Beach Avenue, and the alleged adverse impacts. In doing so, I reiterate that this is not a complaint brought on behalf of a class of persons but rather five individual complaints that were joined for efficiency reasons.

[140] In general, the adverse impacts alleged by the Complainants relate to the elimination, and later, reduction of access to Stanley Park and/or Beach Avenue by motor vehicle. They argue that they were disproportionately impacted as persons who require motor vehicle access due to their mobility limits.

[141] All the Complainants relied on their memory of events at the time they unfolded. None of them provided contemporaneous evidence such as correspondence, notes, or photographs regarding their past usage or trips to Stanley Park and/or Beach Avenue or during the period of changes.

[142] Except for Dr. Richards, the Respondents dispute that the Complainants have proven any adverse impact that rises to the level of triggering the protection of the Code . With respect to Dr. Richards, the Respondents accept that he experienced an adverse impact when he attempted to access Stanley Park during the complete closure but argue that it was justified in all the circumstances at the time.

[143] In the next part of my decision section, I consider the following questions for each of the Complainants:

• Did they experience an adverse impact?
• If yes, were their disability- and/or age- related mobility limitations a factor in the adverse impact?
• If yes, was the adverse impact justified in all the circumstances at the time?

B. Stanley Park Allegations

[144] I begin with the Stanley Park allegations. I review the above questions in relation to the changes to the configuration of the park over four distinct time periods.

(i) Complete closure: April 8 to June 22, 2020;

(ii) Partial reopening: June 22 to September 26, 2020;

(iii) Full reopening (except Ceperley Park area): September 26, 2020, to May 2021;

(iv) 2021 bike lane: May 2021 onward.

i. Complete closure: April 8 to June 22, 2020

[145] Stanley Park was closed to private motor vehicles during this period, meaning that none of the Complainants would have been able to enter the park in their motor vehicle. The amenities in the park were also closed to the public at this time, including the Aquarium, restaurants, and concessions.

[146] I begin with Dr. Richards, the only complainant who gave evidence of an attempt to visit Stanley Park in this period.

Dr. John Richards

[147] Dr. Richards lives in the West End neighbourhood of Vancouver, close to Stanley Park. Before the pandemic he visited Stanley Park regularly with his spouse. He says those trips were short but frequent, estimating two to three times per month up to the start of the COVID-19 pandemic. Some of the places he likes to visit with his spouse include the cricket pitch, Brockton Point, Third Beach, and the Teahouse. Dr. Richards described Stanley Park like an outdoor home with nice views.

[148] Dr. and Mrs. Richards each testified about their attempt to visit the park on an unspecified day in April 2020. They were stopped at the roundabout and prevented from entering Stanley Park by motor vehicle.

Has Dr. Richards proven an adverse impact connected to his disability and age?

[149] When asked about the impact of the complete closure, Dr. Richards testified generally that he missed Stanley Park when he could not go there and that he and Mrs. Richards did not go anywhere else as an alternative during this period.

[150] The Respondents do not dispute Dr. Richard’s evidence that he was prevented from entering Stanley Park on one occasion during the complete closure, due to the temporary restriction of motor vehicles. Although the Respondents take issue with the sufficiency of evidence regarding Dr. Richards’ limitations and restriction, they do not dispute that there is some evidence supporting his claim of mobility limitations and that he required a motor vehicle to access Stanley Park at the time.

[151] I accept that trying and being refused entrance to Stanley Park by motor vehicle during the complete closure amounts to an adverse impact as contemplated by the Code . I also accept that Dr. Richards attempted to visit the Park that day by motor vehicle because he has limited mobility. Dr. Richards’ evidence was that it was getting more difficult for him to get around in early 2020, that his maximum walking capacity was about a block and a half. In these circumstances, I am satisfied that his disability was a factor in the negative impact he experienced. He has proven the elements of his case with respect to this incident.

[152] I also accept that, but for the complete closure and being turned away, Dr. Richards was likely to have visited Stanley Park again during the period of the complete closure. He lives in close proximity to Stanley Park and his uncontroverted evidence was that he and Mrs. Richards used to visit there more than once a month. For this reason, I also accept that the inability to visit altogether for over two months amounts to an adverse impact for Dr. Richards connected to his disability.

[153] In a later section, I consider whether the impacts during this period are justified based on all the circumstances at the time. For reasons I will explain, I find a BFRJ during the period of the complete closure.

Robert Best

[154] Mr. Best thinks of Stanley Park as his backyard, and part of the landscape of living in Vancouver. Before the pandemic, Mr. Best visited Stanley Park variably, depending on his energy and MS symptoms. He described Stanley Park as a sanctuary from traffic, and a place to meander and take a break. He did not go to Stanley Park with a specific destination in mind but would stop where he could safely get out to enjoy the views or take pictures. When he was driving, Mr. Best required a flat wide parking spot to safely exit his vehicle and transfer to his wheelchair.

[155] At the time of the hearing, Mr. Best was not able to drive due to his medical condition. Previously, he drove a modified vehicle using hand controls and with mechanisms that allowed him to transfer between his vehicle and his wheelchair.

Has Mr. Best proven an adverse impact connected to his disability?

[156] When asked about the impact of the complete closure, Mr. Best testified that he heard about it on the news, and experienced it as another “loss” in a series of losses as a person living with MS. He testified that it was upsetting and concerning to him that he would not be able to go there and meander and take a break like he used to. When asked, Mr. Best acknowledged that he could have gone to other parks during the relevant period. However, his evidence was that none have the same variety of views and places to stop as Stanley Park.

[157] In my view, it would require speculation to find that Mr. Best would have accessed Stanley Park during this period, but for the closure. Mr. Best’s situation is unlike that of Dr. Richards. He lives in the Mount Pleasant neighbourhood and did not have a regular pattern of visiting Stanley Park. His evidence was that he spent a lot of time at home during the early days of the pandemic due to his vulnerability and that of his spouse. He also gave evidence about his past habits, including stopping for coffee, or attending events which was not possible during this period due to the closure of the amenities and cancellation of events.

[158] I accept that Mr. Best experienced a feeling of loss when he learned of the closure. It may be that Mr. Best could have encountered issues with accessing Stanley Park by motor vehicle or wheelchair during this period; however, on the evidence before me, I am not satisfied that he has established an adverse impact in relation to access to the Park, considering his personal circumstances at the time and past pattern of usage.

Graeme Anderson

[159] Mr. Anderson grew up in Vancouver and says that going to Stanley Park is something he likes to do. He says he likes the areas by the rowing club, Totem Poles, Brockton Point, and the angled parking on the north side of the park. He also likes being able to go where he wants at his own speed.

[160] Before the pandemic, Mr. Anderson liked to drive around Stanley Park every two to three months. He also liked to exit Stanley Park onto Beach Avenue to enjoy the scenic route and use Stanley Park as a bypass when returning home from the north shore.

[161] Mr. Anderson drives with modified hand controls and says that sharp angles are difficult, and he must be careful when parallel parking.

Has Mr. Anderson proven an adverse impact connected to his disability?

[162] Mr. Anderson lives in the Marpole neighbourhood of Vancouver. His evidence was that he did not use or attempt to use Stanley Park during the complete closure. He does not remember how he heard about the closure but says that he assumed it would be temporary and did not think much about it at the time. He testified that he had other things on his mind since he had been in Arizona when the pandemic started and had to return to Vancouver. Mr. Anderson’s evidence was that he went to other parks closer to home during this period.

[163] Mr. Anderson’s allegations appear to relate strictly to the periods when there was a single lane of motor vehicle traffic in Stanley Park. In these circumstances, the evidence does not support a finding of discrimination against Mr. Anderon during the period of the complete closure.

Rick McCormack

[164] Mr. McCormack lived in the East Vancouver neighborhood. Before the pandemic he visited Stanley Park regularly, around once a month in the spring and summer, and sometimes in the fall. He testified that he found it a relaxing drive and would stop in places like Brockton Point, Lumberman’s Arch, Prospect Point, Second Beach, Third Beach, and Lagoon Drive to take photographs, or occasionally get coffee or something to eat. Third Beach was one of his favorite spots.

[165] Mr. McCormack indicated that at the start of the pandemic he accepted the initial closure as part of the response to the pandemic, although he thought it was excessive. He visited parks closer to home during this period.

Has Mr. McCormack proven an adverse impact connected to his disability and age?

[166] Mr. McCormack testified that he missed going to Stanley Park during the complete closure, since it was part of living in Vancouver. He specifically referred to missing visits to the Third Beach concession and looking out over the water. He also missed going for a relaxing drive through the trees. He also testified about isolating for the most part during the beginning of the pandemic and that he had two toes amputated during this period.

[167] In my view, it would require speculation to find that Mr. McCormack would have accessed Stanley Park during this period, but for the closure. Mr. McCormack’s situation is unlike that of Dr. Richards. He lives in the East Vancouver neighbourhood and his evidence was that he and his spouse opted to recreate closer to home during the early days of the pandemic. He also said that they were concerned about exposure to COVID-19 in those early days due to his health conditions that make him immunocompromised. I also considered that the amenities including at his favorite spot, Third Beach, were closed at the time.

[168] Mr. McCormack could have encountered issues with accessing Stanley Park during this period if he had intended or attempted to go there; however, on the evidence before me, he has not satisfied me on a balance of probabilities that he was likely to have visited during this period. I accept that he was unhappy about the closure; however, considering his personal circumstances at the time and past pattern of usage, I am not satisfied that he has established an adverse impact in relation to his access to the Park under the Code .

Alma Ross

[169] Ms. Ross lived with her family in the West End neighbourhood, close to Stanley Park. Alaura Ross says that, before the pandemic, Ms. Ross liked to be driven around Stanley Park to enjoy the views and get lunch or ice cream. According to Alaura Ross, her mother also liked nature and fresh air. Visiting Stanley Park created moments of joy and perked her up. There is no dispute that Ms. Ross was unable to go to Stanley Park in this period given her dependence on her daughter and son-in-law to take her in their motor vehicle.

Has Ms. Ross proven an adverse impact connected to her disability and age?

[170] As set out earlier in this decision, Ms. Ross did not participate in the hearing. Her daughter, Alaura Ross gave evidence on her behalf.

[171] In general, the Respondents ask the Tribunal to treat the evidence about Ms. Ross’ experience with caution since it is based entirely on hearsay. They also assert that much of the evidence given by Alaura Ross appears to be based on her own experiences, rather than those of her mother. They further say that Alaura Ross has played a dual role in the Tribunal’s proceeding, as both advocate and witness.

[172] The Complainants disagree and argue that Alaura Ross was well placed to give evidence about her mother’s experiences since she provided daily care and was in a position to make minute by minute observations.

[173] Alaura Ross testified that she learned about the closure of Stanley Park on the news. She heard Mr. Bromley, the Park Board GM on the radio, which the parties agreed would have been on April 7, 2020. Alaura Ross was initially concerned about the closure but thought it would be temporary. It is not clear when her mother, Ms. Ross, would have become aware of the closure or what her reaction was, if any.

[174] Alaura Ross testified that during the period of the complete road closure in Stanley Park she could not take her mother to alternative parks or beaches because those parking lots were also closed, and it was difficult to take Ms. Ross for a drive further away because of her anxiety in unfamiliar circumstances.

[175] At the same time, Alaura Ross testified that in the early days of the pandemic, her mother was staying at home because she was vulnerable to the COVID-19 virus. Alaura Ross also testified that she (Alaura Ross) and her spouse followed public health guidelines, avoided social activity, and limited their outings to keep her mother safe.

[176] The evidence before me is that Alaura Ross wrote to the Park Board on April 29, 2020, expressing a concern about the road closure. She stated that she must drive to the restaurants and other amenities when she takes her elderly mother for lunch or dinner, or a drive around the park.

[177] For the following reasons, I have difficulty finding that Ms. Ross experienced a disability-related negative impact from being unable to visit Stanley Park during the complete closure.

[178] During this period, the restaurants and concessions were closed. Therefore, going out for a meal or snack was not an option at the time. Alaura Ross also testified about the family opting to stay home due the uncertainty and risks during the early days of the pandemic. I also considered that Ms. Ross did not give any direct evidence.

[179] On the limited and hearsay evidence before me, I am not satisfied that Ms. Ross has established an adverse impact under the Code during this period.

Summary

[180] For this period, only Dr. Richards has established the elements of his case. The next step in my analysis is to consider whether the Park Board has a BFRJ defence during the complete closure.

Was the complete closure bona fide and reasonably justified?

[181] The parties disagree about whether the Park Board has established any part of the BFRJ test for the complete closure.

[182] The Respondents argue that any adverse impacts flowing from the complete closure were justified given the context of the COVID-19 pandemic and state of emergency at the time. They say the temporary and emergency closure of Stanley Park to motor vehicles was done in good faith and for the legitimate purpose of protecting the health and safety of the public, including the prevention of serious illness, injury, or death resulting from the spread of COVID-19 to park users.

[183] The Complainants dispute that the complete closure of the park to private motor vehicles was justified. The Complainants assert that the Park Board’s decision-making at the time was driven by an interest in a car-free Stanley Park at the expense of seniors and persons with disabilities who require a motor vehicle to access Stanley Park. They also say that the Park Board made the decision to close the park to motor vehicles without any input from the disability community, including PDAC.

[184] Below, I consider the elements of the BFRJ test for the period of the complete closure.

1. Did the Park Board adopt the complete closure for a purpose rationally connected to the function being performed?

[185] The primary dispute under the first part of the BFRJ test relates to the Park Board’s purpose in restricting public road access to Stanley Park. In this section, I explain why I am satisfied that the purpose was public safety, which I find is rationally connected to the function of the Park Board in the context of the novel COVID-19 virus and early days of the global pandemic.

[186] I begin with the general function of the Park Board. The uncontested evidence before me is that the Park Board functions to oversee and provide access to 230 public parks (including Stanley Park) and a system of public recreation.

[187] The Respondents claim the Park Board temporarily closed public road access to Stanley Park for the purpose of slowing or stopping the spread of COVID-19 to park users. Specifically, it says that restricting motor vehicle access to Stanley Park during this period served to reduce non-local visitors to Stanley Park and decongest the seawall. The Park Board argues that temporarily moving the seawall bicycle path to the roadway supported safe physical distancing, helped mitigate the risk of crowding along the seawall, and allowed more safe use by local residents. The Park Board emphasizes that supporting park users to achieve 2 meters of physical distancing was consistent with the recommendations and authority granted by public health officials at the time. In short, the Park Board asserts that its actions were taken in the interests of public safety.

[188] The Complainants dispute that the Park Board’s purpose in closing the road in Stanley Park was limited to ensuring physical distancing on the seawall. They argue that other goals were at play, including a longstanding interest in trialing a car-free Stanley Park and increasing bicycle ridership. The Complainants also dispute the basis underlying the stated goal of decongesting the seawall. In short, the Complainants argue that the Park Board has not established that the closure was necessary to ensure physical distancing on the seawall (e.g., there were no PHO orders requiring them to do so), and that there is no evidence that the Park Board considered and rejected various options other than entirely closing Stanley Park. For this reason, they argue that the Park Board prioritized the interests of cyclists and seawall users over persons with disabilities who require access by motor vehicle.

[189] Below I explain why I am satisfied that the Park Board has established the first element of the BFRJ test.

[190] First, the Complainants do not dispute that the Park Board had the goal of making the seawall safe for park users, including by ensuring that they could maintain 2 meters of physical distancing. I will address the Complainants’ dispute about whether this measure was necessary, appropriate and justified at the time in the next sections.

[191] I am also satisfied that the Park Board’s decision to temporarily close the road to motor vehicles and move bikes onto the road for the purpose of creating space and encouraging only local visitors is rationally connected to its function as a public body overseeing public spaces and recreation, which inherently includes considerations of health and safety for the public it serves. The goals of creating more space on the seawall and encouraging residents to recreate in their local parks was consistent with the orders, directives, and recommendations issued by public health and government officials at the time to prevent the spread of COVID-19. During the initial days and weeks of the pandemic the consistent message was to maintain 2 meters of physical distance, including in the outdoors.

2. Did the Park Board adopt the particular standard in an honest and good faith belief that it was necessary to fulfill the purpose?

[192] The Respondents argue that the closure of Stanley Park to motor vehicles was adopted based on the sincere belief that the temporary measure was necessary to prevent serious illness and death by slowing or stopping the spread of COVID-19.

[193] The Complainants dispute the sincerity of the Park Board’s motives and the necessity of the complete closure to support public health and safety through physical distancing.

[194] I begin with the sincerity of the Park Board’s belief that closing the road was necessary to support physical distancing on the seawall and encourage only local visitors.

[195] For the following reasons, I find that the driving force behind the Park Board’s decision to completely close road access was an honest belief that there was an urgent need to create space on the seawall. I also find that there was a corresponding honest belief that temporarily moving bicycles off the seawall onto the roadway was the most feasible option to quickly create more space for pedestrians on the seawall and create a safe cycling experience for riders of all ages and abilities who would now be cycling on the road.

[196] The Complainants argue that the evidence of the Respondents’ witnesses, including Mr. Bromley, support a conclusion that the Park Board had an interest in establishing and maintaining a bike lane on the road, i.e., that the Park Board was focused on making the bike lane a success. I will explain below why I do not accept this premise.

[197] I begin with the evidence of Mr. Bromley, since he was the one who ultimately made the decision to temporarily move bicycles onto the road and close the road to cars. Mr. Bromley testified at length that he was concerned about an increased use of Stanley Park during the early days of the pandemic despite messages to the public about staying home and in your own neighbourhood. He testified that, in his view, there was less urgency for motor vehicle access since all the amenities were closed at the time. His evidence was also that closing parking and road access were major decisions with significant financial consequences since there would be no parking revenue.

[198] I am not persuaded by the Complainants’ main argument that Mr. Bromley and other staff at the Park Board were motivated by a longstanding interest in trialing a car-free park. I accept that there were discussions amongst Park Board staff about what they could learn from the experience of closing the road and how that might inform future possibilities for a car-free park. However, I am not persuaded that this undermines the honest and good faith belief that decongesting the seawall was critical to public safety at the time. I am also not persuaded that piloting a car-free park was the purpose of the measures. Rather, I accept that the Park Board saw an opportunity, or a “silver lining” that might flow from the measures taken in response to the threat posed by the global pandemic and state of emergency. There is no dispute that Mr. Bromley suggested that the circumstances of the pandemic presented an opportunity to trial a bike lane on the road. However, when it was put to him in cross examination, Mr. Bromley denied that the decision was a way to implement a longstanding strategy to permanently close Stanley Park to cars. He stated that it was a response to COVID-19, which he described as a fire to be put out, and a problem to be contained. I accept his evidence that public safety was his first priority.

[199] I also find it compelling that the decision to close the road was made on March 31, 2020, which many of the witnesses described as a chaotic, highly dynamic, and unprecedented time. There is no dispute that the state of knowledge about the pandemic was extremely limited and evolving day by day. The road closure itself occurred on April 8, 2020, the same time the province closed provincial parks altogether. It was also a time when the City was implementing initiatives such as “Room to Queue” and “Room to Move” which had the goal of creating space for physical distancing on City streets and sidewalks to prevent the spread of COVID-19.

[200] The Park Board sets out the purpose behind the original road closure in numerous contemporaneous internal and external documents including communications to the Commissioners, the Mayor and City Council, and the public. In short, the Park Board’s stated goal was to provide more space for park users to follow physical distancing rules, especially on the seawall where there had been reports of crowding. The Complainants argue that this was more of public relations exercise but have not persuaded me to doubt the sincerity of those communications and reports.

[201] When I consider the context of the pandemic at the time and the totality of the evidence before me, I am satisfied on a balance of probabilities that the Park Board’s decision to create space on the seawall by temporarily moving bicycles onto the road then closing the road to private motor vehicles was taken based on a genuine and honest belief that it was urgent and necessary to avoid crowding and prevent the spread of COVID-19 to protect the health and safety of park users.

3. Was the complete closure reasonably necessary to accomplish the purpose? Could the Park Board have accommodated the Complainants without incurring undue hardship?

[202] The parties dispute the necessity of the road closure and whether there was more the Park Board could reasonably have done to accommodate the Complainants who require a motor vehicle to access Stanley Park.

[203] I begin with the question of reasonable necessity. The parties disagree on whether there was sufficient evidence of crowding and conflicts on the seawall at the time to necessitate the extreme measure of closing the road to create a temporary bike lane.

[204] The Complainants argue that closing the road was not necessary and was not supported by concrete evidence or data at the time. They say this supports their assertion that there were other motivations at play. In support of their position that the Park Board was strongly influenced by a desire to install and trial a car-free bike lane, they point to the capacity of Park Board staff to engage in significant planning to action the closure, including developing a pass system for the stakeholders within the park, including businesses, the Aquarium, and members of the Yacht Club.

[205] The Park Board acknowledges that it did not have hard data at the time about the numbers of people or “crowding” on the seawall. The Park Board says that it was relying on observations from staff and what it was hearing from the public. Mr. Bromley testified that the Park Board considered the seawall as a “flashpoint”, based on complaints and reports of conflict between users moving at different speeds (e.g. walkers vs. joggers vs. cyclists). He also testified that closing the road was not the first choice. The Park Board’s initial approach upon hearing about steady streams of people and pinch points was to educate the public including by posting signs and having staff walk around with pool noodles to demonstrate what 2 meters of distance looks like. According to Mr. Bromley, the Park Board ultimately determined that there were still too many people and with warmer weather approaching they had to escalate their response. Mr. Bromley testified that he considered closing the park altogether, like the province had done, but determined it was too severe a measure.

[206] The context at the time is a critical lens through which I consider the question of reasonable necessity. As set out above, the Complainants disagree with the Park Board’s assessment of risk and necessity at the time, including a lack of clear and documented data. In my view, the lack of specific data or documentation at the time does not undermine the Park Board’s assessment of necessity. I accept that the Park Board was making decisions during a period when the stakes appeared very high and there had not previously been a reason to collect data about if, how, and where, park users were unable to maintain two metres of distance between them or the level of “crowdedness.” I also accept Mr. Bromley’s and Ms. Dunlop’s evidence that Park Board staff had assessed the seawall as too crowded, and that the Park Board had received complaints about crowding and related conflicts. I further accept that the Park Board took staff observations and public complaints seriously.

[207] Next, I turn to the question of whether the Park Board could have accommodated the Complainants without incurring undue hardship.

[208] The Respondents argue that they adequately considered, implemented, modified, and subsequently removed the temporary restriction in an appropriate and timely manner given the circumstances. They also argue that the notion of undue hardship takes on a different consideration in a pandemic where the health and safety of the public was under threat. They emphasize that the complete closure was implemented during the most acute and uncertain phase of the pandemic in BC, and that within approximately 10 weeks of the initial closure, the road was partially reopened to motor vehicles.

[209] The Park Board’s evidence was that closing the road was not easy, but it was feasible, and less logistically challenging than closing the seawall. The idea was that, by moving bicycles onto the road, it would double the capacity on the seawall by allowing pedestrians to use both paths. The Park Board also believed that it could support the purpose of discouraging people from driving in from other neighbourhoods.

[210] The Complainants’ primary argument is that the Park Board cannot show undue hardship when it did not consider alternatives to closing the road. They argue that the Park Board has not offered any real explanation why other options were not workable (e.g., splitting the seawall, varying entry points to the seawall, or permitting persons with disabilities road access).

[211] Below, I explain why I accept that it is more likely than not that the Park Board considered other options in the limited timeframe and reasonably rejected them based on the conclusion that they were unworkable, unsafe, and/or less effective in maintaining physical distancing. I also accept that the Park Board considered whether there were other ways to provide motor vehicle access while maintaining safety for park visitors and that finding a workable solution that balanced motor vehicle access with public health and safety goals took time.

[212] I begin with the seawall. The Complainants argue that that the Park Board gave virtually no consideration to limiting the use of the seawall to limit the number of walkers, rollers and cyclists. They rely on the fact that contemporaneous documents such as meeting minutes do not show that the Park Board considered options like splitting the seawall or varying the entry points onto the seawall.

[213] In his testimony, Mr. Bromley emphasized that the original decision was an urgent and temporary solution to the problem of crowding on the seawall, and the only other realistic option at the time was to close Stanley Park altogether. In assessing his options, I accept that Mr. Bromley and the Park Board, like many public bodies during the early days of the pandemic, had a variety of competing demands and challenges, including with respect to supplies, staffing levels, communications and more.

[214] Ms. Dunlop was cross-examined extensively on the options that Park Board staff team considered at the time, including whether they considered closing the seawall to everyone, closing the busy areas of the seawall, and splitting the seawall. Ms. Dunlop testified that there were discussions about closing the seawall, closing busy parts of the seawall, and about different cycling routes and zones. She also indicated that the planning team talked about many ideas. She could not recall all of them but agreed they had considered some of those suggested by the Complainants at the hearing. Part of her role was to operationalize, in a very short time frame, Mr. Bromley’s decision to move bikes onto the road to give pedestrians more space on the seawall. I accept that the planning team at the Park Board looked at a variety of options to achieve the goal of creating more space and, after much discussion, concluded that moving bikes to the road temporarily was the only feasible option given the fluidity and urgency of the situation, as well as the complexity of transportation planning, and limited resources at the time.

[215] Another point of dispute between the parties is whether the Park Board gave due consideration to the option of permitting motor vehicle access for persons with disabilities during this period, including those with SPARC permits. The parties also disagree on whether the Park Board took reasonable steps to consult with the disability community, including PDAC, before making the decision to close the road to motorists.

[216] I accept that the Park Board had limited time, resources, and capacity to consider potential alternative options during the most acute phase of the pandemic. It is through this lens that I also accept that the Park Board did consider access for those who require motor vehicles and reasonably concluded that more access was not possible at the time due to the urgency of the pandemic response, uncertainty about how long the situation would last, and complexity of transportation planning.

[217] I begin with the Complainants’ argument that the Park Board ought to have sought feedback from PDAC before making a decision that would impact persons with disabilities who require a motor vehicle to access Stanley Park.

[218] The Park Board did not consult with PDAC regarding the initial decision to close the road in Stanley Park. The Park Board argues that it was a temporary and emergency measure taken at a time when the public was under threat from the COVID-19 virus, which was far outside their usual process for project planning and implementation which always includes a consultation stage. There is also no dispute that meeting with PDAC would not have been possible since PDAC did not meet in April or May 2020. The next PDAC meeting took place on June 11, 2020, and the Park Board ultimately met with PDAC in July 2020.

[219] I also observe that Mr. Brown, in his personal capacity, wrote to the Park Board on May 20, 2020, suggesting that, if the Park Board was considering a permanent ban on cars, then it should be viewed by PDAC first. The following is a direct quote from his letter:

While the current temporary measure is understandable, given the extraordinary circumstances we now live in, permanent closure of road access to the park would essentially prohibit anyone with mobility challenges from ever having the opportunity to enjoy the park and all of its amenities.

[220] When Mr. Brown was asked about his letter, he agreed that in May 2020 he believed that the temporary restrictions were reasonable and that his concern was about the Park Board taking any permanent measures before consulting with PDAC. Mr. Brown agreed that he received prompt and supportive responses from the Park Board GM and one of the Commissioners.

[221] The parties disagree on whether the Park Board reasonably and sufficiently considered allowing access to the park for persons with SPARC permits. For example, the Complainants say there could have been a relatively simple system of exemptions, pointing to the barricades and pass process set up for the stakeholders in the park. They argue that the failure to consider a screening process for persons with disabilities means that undue hardship is not established.

[222] The Respondents disagree that it was a simple matter of trialing a system that allowed access for persons with disabilities to enter Stanley Park in their motor vehicles. They distinguish this group from the stakeholders in the park whom they could readily identify and exercise some control over based on their contractual relationship. Those controls included reduced speed limits, and a requirement to use four-way flashers. The Respondents also highlight the significance of creating a safe environment on the road for cyclists of all ages and abilities. Ms. Dunlop provided significant evidence about how the Park Board did not have the benefit of its usual planning process. Based on the initial information that Ms. Dunlop and the planning team had about SPARC permits, including information from SPARC BC indicating there were around 40,000 issued in the City and surrounding areas, the team deemed the option unworkable at the time and over the following weeks worked on a strategy that could make a mixed-use option safe for cyclists and motor vehicles to share the road.

[223] Based on all the evidence before me, I am not persuaded that the Park Board did not consider the accessibility needs of persons with disabilities. As set out above, the Park Board inquired into the number of SPARC permits issued in the City, and Ms. Dunlop had an informal conversation with a co-worker who uses a wheelchair and has a SPARC permit. Early on, there was also discussion about increasing accessibility for persons with disabilities arriving by car by opening up parking stalls near the tennis courts and Park Board office. The Respondents also note that transit busses continued to be able to access Stanley Park, and not all persons with disabilities have or drive cars.

[224] In usual times, I might agree with the Complainants that these types of efforts to accommodate persons like the Complainants who require motor vehicle access may not have met the threshold of taking all reasonable and practical steps short of undue hardship. However, these were not usual times or circumstances and therefore undue hardship must be assessed in context.

[225] The Complainants argue that the Park Board was required to trial allowing persons with SPARC permits before deciding it was unworkable. I disagree. I accept that, after hearing the potential numbers, the Park Board reasonably assessed that permitting every person with a SPARC permit could cause a safety issue for the cyclists on the road. Once the Park Board decided to move bicycles onto the road, they had an obligation to keep those cyclists safe and it took time to develop a plan for a mixed-use roadway. I also accept that trialing this option based on the information it had at the time risked spreading COVID-19 and the potential consequence of causing serious illness and death. Moreover, Ms. Dunlop testified at length about how challenging it was to set up the very limited pass system for those stakeholders in the park who had contractual relationships with the Park Board.

[226] It is understandable that the Complainants were frustrated and disappointed with how long it took to regain to motor vehicle traffic. However, in all the circumstances, including the complexity of transportation planning and the evolving knowledge about COVID-19, I am not persuaded that the timeline was excessive. Accommodation can take time and the evidence in this case shows that there were discussions about accessibility for those with mobility limitations leading up to the April 8 closure and ongoing until the partial reopening on June 22. This includes specific discussions with Park Board Commissioners on May 11 and June 8, 2020. I also observe that the timing was in line with the BC Restart Plan.

[227] The Complainants have not persuaded me that the lack of formal documentation means that other ideas and options were not considered and rejected. I return to the consistent evidence that it was a chaotic and fast paced period of time. I find that it is more likely than not that many ideas were raised, some were discounted out of hand, others were subject to discussion, and not every idea was likely captured by meeting minutes or other documentation. This is because the complete closure was a form of experiment and intended as a temporary measure during a time of urgency and great uncertainty.

[228] The Complainants have also not persuaded me that the Park Board overstated its safety concerns about having bicycle riders of all ages and abilities sharing the road with motor vehicles. The Complainants essentially argue that, had the Park Board allowed entry to persons with disabilities in motor vehicles, there is no evidence that the number of cars would have exceeded an acceptable level of risk based on existing guidelines for cycling networks. The Respondents advanced a significant amount of credible and reliable evidence about the planning and implementation for the partial reopening that was subject to ongoing modification and improvement to ensure the safety of cyclists of all ages and abilities. In my view, it was reasonable for the Park Board to rely on its experience and expertise when deciding to control, as much as possible, the motor vehicle traffic on the road during this period.

[229] In summary, I find it compelling that the assessment of undue hardship took place during the most acute and uncertain time of the pandemic in BC. I also accept that the Park Board had limited capacity and resources at the time due to the scale and volume of demands created by the pandemic from supply shortages, staff shortages, adjusting to a virtual environment, and attending to all the other Park Board programs and facilities across the City. In the context of those limitations, I find that the Park Board discharged its duty to accommodate options short of undue hardship, which included putting park users at risk.

ii. The Other Time Periods (Partial Reopening, Full Reopening, and 2021 Bike Lane)

[230] For the reasons that follow, I find the evidence does not support a finding that any of the Complainants faced a specific barrier or challenge amounting to an adverse impact under the Code when at least one lane in Stanley Park was available to motor vehicles.

[231] In this section, I consider the evidence of the Complainants regarding their access to Stanley Park in the combined three time periods after the complete closure was lifted. This includes the partial reopening that started on June 22, 2020, the full reopening that started on September 26, 2020, and the phases of the 2021 bike lane that started in May 2021 by reducing the roadway to one motor vehicle lane again. This decision does not recount every detail of the Complainant’s evidence but focuses on their primary allegations. My findings are based on the whole of each Complainant’s evidence as well as the parties’ comprehensive submissions on the issues.

[232] I pause here to note that the parties agree discrimination must be assessed contextually and purposively. They also agree that the Complainants were entitled to “meaningful access.” The parties disagree; however, on what meaningful access means in the circumstances of Stanley Park when not every destination and parking spot was accessible as compared to the period before the pandemic.

[233] In reaching my below findings about adverse impacts, I considered the parties arguments about what it means to have meaningful access in the context of a large park with extensive waterfront access, a scenic drive, and a variety of amenities.

[234] The Respondents rely on the case Riddle v. Town of Gibsons , 2017 BCHRT 148, to argue that meaningful access is not encumbered, without more, by the temporary unavailability of a particular parking spot or viewpoint or slowness of traffic.

[235] The Complainants argue that, in the context of a recreation facility like Stanley Park, the freedom of choice is an essential aspect of what these areas provide to users, including when to go, how to go, where to go, what to do, and how long to stay.

[236] Below, I consider whether the evidence supports a finding that the Complainants were denied meaningful access amounting to an adverse impact that triggers the protection of the Code . For the same reasons set out in my analysis above, I consider the circumstances and evidence for each of the Complainants separately, because they are individual complaints.

Dr. Richards

[237] Below I summarize Dr. Richards evidence about his experience after he resumed his visits to Stanley Park and explain why I find that evidence insufficient to establish an adverse impact as contemplated by the Code .

[238] Dr. Richards testified that he visited Stanley Park during the partial reopening when there was one lane for motor vehicles. When asked about his experience, he did not have a specific recollection. Instead, he spoke generally about his impression that it was less accessible and not accessible enough to make it pleasant. He referred generally to issues with parking and “getting around.” Dr. Richards filed his complaint during this period, and when asked about his goal at the time, he explained that he wanted the Park Board to restore access to Stanley Park to what it was before the pandemic, meaning two traffic lanes and associated parking.

[239] Regarding the period of the full reopening when there were two motor vehicle lanes, Dr. Richards did not provide evidence of any specific access issues.

[240] Regarding his visits to Stanley Park in 2021, including in the period when the bike lane was reinstalled in one lane, Dr. Richard’s evidence was that he visited Stanley Park, but not as often as he had previously. He did not provide further details. He also stated that he had heart surgery in September 2021.

[241] When looking at Dr. Richard’s evidence on disability-related adverse impact, I also considered the evidence given by Mrs. Richards about their use of the park during the period following the complete closure. She gave consistent evidence that she and Dr. Richards resumed visiting Stanley Park when it reopened to motor vehicles, including when there was a single traffic lane. She did not give specific evidence about when or how their travel in the park was impacted by the changes during the different periods and corresponding road and parking conditions.

[242] At the time of the hearing, Dr. and Mrs. Richards both testified that they continue to access and visit Stanley Park by motor vehicle.

[243] The Respondents argue that Dr. Richards’ evidence demonstrates that he had meaningful access to Stanley Park once it reopened to motor vehicles. On this basis, they argue he has not met his burden to prove an adverse impact under the Code . They also ask the Tribunal to consider that Dr. Richard’s memory was generally poor, and that his perspective was based on impressions not evidence.

[244] I agree that Dr. Richards testified generally about his view on the accessibility of Stanley Park once he was able to access it again by motor vehicle. He did not provide details or specific examples about what he says was inaccessible, less accessible, or otherwise problematic for him. For example, he testified that Stanley Park was congested, and parking was difficult but when asked about his specific trips to Stanley Park he could not recall the details, including when he would have visited. He was also unable to say what specific amenities, roadways, or parking areas he intended to visit but were closed or inaccessible to him during a given period.

[245] In all the circumstances, including the fact that Dr. Richards was able to resume his visits to Stanley Park once motor vehicles were allowed to return and the lack of details in Dr. Richard’s evidence regarding his alleged adverse impacts, I find that he has not proven on a balance of probabilities that he experienced disability-related adverse impacts during the periods following the complete closure of Stanley Park to motor vehicles.

[246] I dismiss Dr. Richard’s allegations concerning Stanley Park from June 22, 2020, onward.

Mr. Best

[247] Below I summarize Mr. Best’s evidence about his experience after the complete closure was lifted and explain why I find that evidence insufficient to establish a disability-related adverse impact as contemplated by the Code .

[248] Mr. Best testified that he was not keen on going to Stanley Park when it reopened with one lane based on the images he saw on the news. He determined that the pylons and cones he saw on the roadway would be barriers and obstacles that are too exhausting for him as a person driving with hand controls. Mr. Best testified that, despite his concerns, he did go to Stanley Park a couple times, and he found the experience not pleasurable, and even dangerous. On one occasion he said he cut his trip around Stanley Park short and exited using Pipeline Road. He did not provide dates or details about those visits.

[249] Mr. Best testified that he did not go back to Stanley Park after September 2020, when the two lanes of Park Drive were restored. He indicated that it was not worth it for him because there were too many unknowns, and he did not feel capable of navigating the changes. In 2021, Mr. Best stopped driving.

[250] Mr. Best testified that, when he filed his complaint in June 2020, his goal was to restore the two lanes of motor vehicle traffic in Stanley Park, and associated parking.

[251] The Respondents argue that Mr. Best’s evidence about adverse impact was too vague and that he did not provide specific examples of any adverse impacts that he experienced. They argue that, instead, his evidence was comprised of general comments on hypothetical barriers or his opinion about the accessibility of certain unspecified parking spots.

[252] The Respondents also argue that Mr. Best’s evidence lacked clarity on what mobility restrictions and limitations he had during which periods, including how they interplay with his use of a wheelchair. As an example, they point to his evidence that prior to the pandemic he could go travel 10 blocks in his wheelchair, and later he was not able to drive at all.

[253] I find Mr. Best’s evidence regarding his alleged adverse impacts too vague and lacking in detail to prove on a balance of probabilities that he experienced an adverse impact during the periods following the complete closure of Stanley Park to motor vehicles. For example, he testified that when he saw the first cluster of pylons and the traffic on his visit, he assessed that continuing would be dangerous for him. He did not explain further or provide additional details about the danger. I also observe that Mr. Best testified about times when he chooses not to drive at all due to fatigue and other MS symptoms. In addition, I find it relevant that the lack of detail in Mr. Best’s evidence means that it is unclear whether there could have been other factors at play on the day he decided to cut his trip short, including the weather, time of day, his medical condition, or the behaviours of other drivers.

[254] In short, I find it difficult to conclude, on the limited information before me, whether Mr. Best was denied or deprived of meaningful access when he chose to end his visit early on one undated occasion and when he assessed returning to the park as not worth it. In these circumstances, I dismiss Mr. Best’s allegations concerning Stanley Park from June 22, 2020, onward.

Mr. Anderson

[255] Below I summarize Mr. Anderson’s evidence about his experience and explain why I find that evidence insufficient to establish a disability-related adverse impact as contemplated by the Code .

[256] Mr. Anderson provided one example of when he was unable to access a specific area of Stanley Park on a specific date. The remainder of his evidence regarding adverse impact was general in nature.

[257] I begin with the specific example. Mr. Anderson testified that on September 12, 2020, he wanted to attend a demonstration at the Totem Poles but was unable to find parking.

[258] The Respondents argue that this allegation is not part of the complaint and is an improper expansion of Mr. Anderson’s allegations. In the alternative, the Respondents say that the parking at the Totem Poles, including all regular and accessible stalls, was not impacted by the changes implemented in Stanley Park. The Respondents also highlight that the event Mr. Anderson wanted to attend was not hosted or planned by the Respondents and the unavailability of parking at this location on this date was a product of the number of persons attending the demonstration and not attributable to the traffic changes, including the installation of the bike lane. The Respondents further argue that the general unavailability of parking on a single busy day is insufficient to constitute a breach of the Code and is not in itself proof of discrimination.

[259] I agree with the Respondents that the allegation about parking at the Totem Poles was not part of Mr. Anderson’s complaint that was amended on October 5, 2020. I also agree that, in any case, Mr. Anderson has not established an adverse impact when there is no dispute that the parking lot at issue was not impacted by the changes implemented in Stanley Park that are at the heart of the complaints.

[260] Next, I consider Mr. Anderson’s general testimony that he found his trips around Stanley Park slow, unnerving, and dangerous when the road was reduced to one lane, and that there was no longer parking at other places he used to go. By way of example, Mr. Anderson testified about seeing a car drive into the bike lane. He did not say when or where that occurred. He also testified about a time when it took him 20 minutes more than usual to get home from Stanley Park due to congestion on the Georgia Street exit. He did not provide more information about that experience. In addition, Mr. Anderson testified about the fact that the accessible washroom at Ceperley Meadow was not reachable by motor vehicle. He did not specify when he wanted or intended to use it or provide information about a past pattern of using this particular washroom.

[261] Mr. Anderson testified that when the bike lane was installed in one of the motor vehicle lanes, he wrote off Stanley Park. He also stated during his testimony that he had done his best to “mute” this experience from his memory. Mr. Anderson’s goal in filing his complaint was to restore two lanes of motor vehicle traffic and associated parking.

[262] The Respondents dispute that any of Mr. Anderson’s evidence supports a conclusion that he experienced an adverse impact under the Code . They argue that during the partial reopening Mr. Anderson had meaningful access to the park. They highlight that during cross-examination, he agreed that the busyness of Stanley Park is based on many factors, and that he did not give evidence concerning how “slow” traffic was moving on the dates of his visits or demonstrate in his evidence that the installation of the bike lane was the cause of the increased traffic. The Respondents further argue that slow traffic is an inconvenience and not an adverse impact, and there is no evidence that Mr. Anderson was disproportionately impacted in relation to any other road user. Regarding the allegation about cars driving into the bike lane, the Respondents argue that Mr. Anderson speculates that this occurred because the drivers were frustrated with the single lane and did not assert in his testimony that he was somehow personally impacted.

[263] Regarding parking in general, the Respondents acknowledge that certain parking was unavailable during this period. However, they say that Mr. Anderson’s evidence was too vague to establish he experienced an adverse impact in relation to his disability as a result of generally unavailable parking. For example, they point to the allegation that during one visit Mr. Anderson says there was no parking on the right side of the road and the alternative parking spots were further away and would be more difficult for him to access. They say Mr. Anderson did not give evidence about where he intended to go during his visit that day, or what specific amenity or feature of Stanley Park he was prevented from accessing. They also argue that there is no evidence that he attempted to use the alternative parking or that it was too far away or more difficult based on his specific limitations and restriction.

[264] I acknowledge that Mr. Anderson was generally disappointed by the changes to Stanley Park, and about times he was temporarily unable to access locations like Brockton Point and Third Beach. However, on the evidence before me I am not persuaded that his inability to access a particular view or destination on a single visit amounts to the denial of meaningful access.

[265] I agree with the Respondents that Mr. Anderson provided little evidence regarding his specific limitations and restrictions including about what distance would be too far to walk. He also did not provide evidence that would explain how his limitations and restrictions may be impacted by mobility aids. This is relevant to his allegations about not being able to park in areas where he used to be able to park. I also find it relevant that he could not remember whether or how often he visited during the period when the road was open, and assumed incorrectly, for example, that Third Beach continued to be inaccessible after the Park Board reconfigured the access.

[266] I must base my decision on the evidence of disability-related impacts presented at the hearing, and not theoretical or anticipatory impacts. I pause to note that Mr. Anderson and the other Complainants offered mostly what I consider to be anecdotal evidence about access to Stanley Park and how it compared to the access that cyclists had. In reaching my decision about adverse impact, I am required to consider the evidence of the actual experience and impacts on the Complainants. As set out earlier, the Complainants relied strictly on their memories of events. Understandably, they had difficulty relaying details about their experiences that occurred one and two years prior. This reality makes it difficult to assess whether their inability to access areas including preferred views or parking spots in a very large park with many scenic destinations and parking areas are significant enough to rise to the level of an adverse impact contemplated by the Code .

[267] I find the context of Stanley Park to be a critical lens for the assessment of meaningful access. As set out earlier, Stanley Park is a very large park with a large number and variety of destinations, views, amenities, and modes of access from roadways to a paved seawall, to unpaved trails through the interior of the park. In this context, the inability to temporarily visit a preferred destination within the park on its own is not a sufficient basis to find a lack of meaningful access.

[268] Considering Mr. Anderson’s alleged adverse impacts individually and collectively, I am not persuaded that he has met the threshold required under the Code .

[269] In all the circumstances, I dismiss Mr. Anderson’s allegations concerning Stanley Park from June 22, 2020, onward.

Mr. McCormack

[270] Below I summarize Mr. McCormack’s evidence about his experience after the complete closure was lifted and explain why I find his evidence insufficient to establish a disability-related adverse impact under the Code .

[271] Mr. McCormack testified about a time he visited Stanley Park in August 2020 when he found the traffic slow, drivers impatient, and cyclists in the vehicle lane. He described the experience as unwelcoming. He also testified more generally about being unable to access Brockton Point, Prospect Point and Third Beach by motor vehicle. He acknowledged that, when he visited in the spring of 2021, Brockton Point was open again, and he did not realize that the access to Third Beach had changed. In addition, Mr. McCormack testified about a time he got stuck behind the slow-moving horse and carriage, and that he found the views from the left lane not as good as from the right lane (which had become the bike lane).

[272] Mr. McCormack stated that he filed his human rights complaint in the hope that there might be solutions other than closing off one lane of traffic in a popular park or denying access to a lot of people who cannot access the park by bike, bus, or other means.

[273] The Respondents argue that Mr. McCormack has not proven a disability-related impacted for several reasons. Regarding alleged traffic issues, the Respondents argue that Mr. McCormack agreed in cross-examination that certain areas of the park could be more or less busy based on many factors including the weather, day of the week, season, and whether an event was occurring. They say he did not provide any evidence concerning the precise day or time he went to Stanley Park and therefore there is no evidence that any traffic issues are attributable to the traffic changes or some other factor.

[274] The Respondents repeat their argument that slow traffic in and of itself is an inconvenience that impacts everyone using Stanley Park and is not an adverse impact triggering the protections of the Code . They also say it is unclear what Mr. McCormack meant by unwelcoming. Their understanding is that his primary concern was the closure of the concessions and amenities rather than access per se .

[275] The Respondents further highlight that Mr. McCormack’s wife was driving and he was a passenger during his visits to the park. For this reason, they say there is no evidence that the traffic disproportionately impacted Mr. McCormack as a driver. They also highlight that there is no evidence about his inability to sit for extended periods. For this reason, the Respondents take the view that Mr. McCormack’s experience was no different from any other road user on the days he visited.

[276] Regarding the areas in the park identified by Mr. McCormack, the Respondents argue that Mr. McCormack did not provide clear evidence regarding any intention to stop at places like Brockton Point or any impact of the temporary closure. His evidence was only that he could not drive to Brockton Point because it was closed off, so he continued along Park Drive. They argue that even if Mr. McCormick was temporarily unable to access Brockton Point to take pictures on one occasion he was not precluded from access to other scenic areas in Stanley Park where he enjoyed taking pictures.

[277] The Respondents also advance an argument about the sufficiency of Mr. McCormack’s evidence about his mobility and use of mobility aids during this period. They say it is not established what distance, and under what circumstances, Mr. McCormick was able or unable to access some unspecified area of Brockton Point to take pictures without motor vehicle access. The Respondents assert that traffic or being unable to temporarily access a particular section of Stanley Park on a single visit, does not equate to the denial of meaningful access to Stanley Park.

[278] For reasons similar to my analysis above, I am unable to find that Mr. McCormack has provided sufficient evidence to establish a disability-related adverse impact under the Code . I agree with the Respondents that there was little evidence about Mr. McCormack’s limitations and restrictions, including how they may have changed over time. There was also limited information about the circumstances surrounding the visits he made to Stanley Park when motor vehicle access was restored. I am unable to conclude, based on the general nature of his evidence, that because certain areas were temporarily inaccessible that he was denied meaningful access. I agree with the Respondents that his evidence of impact was primarily based on certain amenities being closed when he tried to visit them, a concern unrelated to his disabilities. In all these circumstances, I dismiss Mr. McCormack’s allegations from June 22, 2020, onward.

4. Ms. Ross

[279] Lastly, I consider the evidence that Alaura Ross provided regarding Ms. Ross’s experience after the complete closure was lifted. Below I explain why I am not satisfied that Ms. Ross has established a disability-related adverse impact under the Code .

[280] Alaura Ross provided one example during the partial reopening in 2020. She says they drove to Prospect Point to get ice cream and parked on the road because the lot with accessible stalls was closed. Alaura Ross helped Ms. Ross walk to a picnic table then got them ice cream. Alaura Ross testified that when they got back to the car, Ms. Ross was out of breath, and she decided that the walk was too far, and they would not do that again. Alaura Ross also testified that she observed there were no curb cuts on the road had they brought Ms. Ross’s wheelchair with them (which they had not). Alaura Ross testified more generally that they could not access Brockton Point, Second Beach, or the Third Beach parking lot and they ended up going to eat at Stanley’s because it was accessible.

[281] Alaura Ross further testified about slow traffic. Her evidence was that getting stuck made Ms. Ross anxious and caused her to ask questions. Alaura Ross also testified that she found having to exit on North Lagoon stressful and that she missed being able to drive Ms. Ross home through the tennis courts and past the heron nests.

[282] Alaura Ross testified that she drove Ms. Ross around the Park after both lanes were opened again.

[283] During 2021, when the road was again reduced to a single lane for motor vehicles, Alaura Ross indicated that they continued to enjoy their drives but found the traffic became more congested and they could not get to every part of the park. Alaura Ross estimated that, at times, about one-third of the Park was not accessible to Ms. Ross.

[284] The Respondents advance several arguments with respect to Ms. Ross. They repeat their concerns about the fact that all the evidence was hearsay, and that Alaura Ross participated as both witness and advocate. They also argue that, in any case, Ms. Ross had meaningful access once the road closure was lifted.

[285] The Respondents dispute that the evidence establishes that Ms. Ross experienced an adverse impact on the day they went to Prospect Point. They point to Alaura Ross’ evidence that her mother walked too far that day and became tired and out of breath while getting ice cream. The Respondents point to several factors including that Ms. Ross required a wheelchair to go virtually any distance, they did not have Ms. Ross’ wheelchair that day, and there is no evidence that Ms. Ross could not have stepped onto the curb if they had brought it with them. The Respondents also argue that there is insufficient evidence about Ms. Ross’ limitations and restrictions to ascertain how far she could go on foot with assistance, when she required a wheelchair, and how far she could go in a wheelchair, and whether the locations referred to by Alaura Ross exceeded Ms. Ross’ limits.

[286] Regarding other locations with views and parking, such as Brockton Point, the Respondents again argue that the temporary inability to access a preferred view or parking spot does not amount to an adverse impact under the Code . They also argue that there is insufficient evidence to ascertain whether Ms. Ross was able to access those views or areas by other means, including by being dropped off or pushed in a wheelchair. In terms of traffic and congestion, the Respondents argue that Ms. Ross was not driving and Alaura Ross conceded that the park can be more or less busy depending on factors including time of day, weather, and events. They also argue that Alaura Ross agreed that her mother was still able to enjoy the greenery of the park and lunch.

[287] In all the circumstances, including the fact that Ms. Ross was able to resume her visits to Stanley Park once motor vehicles were restored, the absence of direct evidence from Ms. Ross regarding disability-related adverse impacts, and the limited hearsay evidence from Alaura Ross, I agree with the Respondents that Ms. Ross had not established that she was deprived of meaningful access to Stanley Park. This means that she has not proven a disability-related adverse impact under the Code during this period. For this reason, I dismiss Ms. Ross’ allegations from June 22, 2020, onward.

C. Beach Avenue Allegations

[288] I am not persuaded that any of the Complainants have provided sufficient evidence upon which the Tribunal could conclude that they experienced adverse impacts in relation to their access to Beach Avenue due to their mobility limitations. In reaching this conclusion, I considered all of the Complainants’ evidence about their use of Beach Avenue during the relevant time (April 8, 2020, through 2021).

[289] Below, I provide a brief procedural history of the Beach Avenue allegations to put this part of my decision in context.

[290] The five individual complaints were originally filed with the Tribunal in June and July 2020. They were brought against the Park Board only. The specific allegations related to changes in Stanley Park including the temporary closure of the road and the later reallocation of one traffic lane and some parking areas to create a temporary bike lane. None of the original complaints referred to the changes to Beach Avenue.

[291] The Complainants later amended their complaints to include allegations in relation to the corresponding changes the City was making to Beach Avenue, including the reallocation of the eastbound lane between Hornby Street and Park Avenue to create a temporary bike path. The complaint allegations against the City, in relation to Beach Avenue, include that the Complainants lost the views, use, and enjoyment of the waterfront and beach along English Bay and Sunset Beach and were prevented from using parking spaces and accessible parking in that area, including on-street parking and the parking lots located below Beach Avenue. The Beach Avenue allegations set out in the amendments are general in nature and do not give details of a specific incident faced by a particular complainant, or a specific barrier in relation to accessing a specific service.

[292] During the hearing, the Complainants’ evidence regarding their use of Beach Avenue was quite limited. For the most part, their evidence focused on their use and experience regarding Stanley Park.

[293] In their final submission, the Complainants argue that the changes to Beach Avenue had a particularly negative impact on them because it prevented them from continuing with their visits to Beach Avenue and English Bay altogether. They say that the negative impact was directly related to their disabilities because they were no longer able to access this area by motor vehicle.

[294] The Respondents argue that the Beach Avenue allegations ought to be dismissed based on a lack of evidence. The Respondents assert that the allegation of a negative impact is a bare assertion without factual foundation.

[295] In this section, I explain why I dismiss the Beach Avenue allegations. In short, I agree there is a lack of evidence that any of the Complainants attempted, intended, or were likely to access Beach Avenue during the relevant time and instead faced a barrier or obstacle amounting to an adverse impact under the Code .

[296] I begin with a summary of the Complainants’ evidence about Beach Avenue.

[297] Mr. Best acknowledged that, although he had previously travelled on Beach Avenue to enjoy the views, or used it as an exit from Stanley Park, he did not access or attempt to access Beach Avenue during the relevant period.

[298] Similarly, Dr. Richard’s evidence was that he used to visit the parks along Beach Avenue in years past when he lived along Beach Avenue, but he did not access or attempt to access them during the relevant period.

[299] Mr. McCormack also did not give evidence about his use or intended use of the public spaces along Beach Avenue during the relevant period.

[300] Mr. Anderson’s evidence about Beach Avenue was limited to his experience of Beach Avenue being linked to Stanley Park. He described his habit of driving around the park and exiting onto Beach Avenue rather than using the Georgia Street exit. As set out above, he gave evidence about one time, during the relevant period, when he had to take the Georgia Street exit instead of Beach Avenue which added 20 minutes to his drive home.

[301] Alaura Ross testified that she often drove with Ms. Ross to the west side of Vancouver using Beach Avenue in both directions before the pandemic. They would visit family members once a week. Her evidence was that Ms. Ross enjoyed the views along that route. After the changes to Beach Avenue in April 2020, Alaura Ross testified that they had to take a different route to the west side but were still able to return home along Beach Avenue. Alaura Ross was not sure, however, if they had stopped taking those trips during the pandemic. Alaura Ross also gave evidence about the exit onto Georgia Street being “chaotic” as compared to the previous exit onto Beach Avenue.

[302] Only Ms. Ross and Mr. Anderson gave evidence of an intention to use or access the public space along Beach Avenue during the relevant period.

[303] In the case of Mr. Anderson, the single impact he spoke about was a 20-minute delay on one occasion when he had to use Georgia Street to exit Stanley Park rather than his preferred route of Beach Avenue. In my view, it would require speculation to conclude that Mr. Anderson’s disability and need to travel by car was a factor in the 20-minute delay he experienced when he had to use the Georgia Street exit. I agree with the Respondents that traffic delays can be attributable to any number of factors. I also agree with the Respondents that slow traffic on a single visit to Stanley Park without anything further is not an adverse impact as contemplated by the Code . There is simply insufficient evidence before me to conclude that Mr. Anderson was disproportionately impacted by the Beach Avenue closure as a result of his disability.

[304] With respect to Ms. Ross, I similarly find that Alaura Ross did not provide sufficient evidence to conclude that her mother experienced an adverse impact as contemplated by the Code. Alaura Ross acknowledged that, when Beach Avenue became one-way, Ms. Ross could still access and enjoy the views when travelling in the westbound direction. Moreover, Alaura Ross was uncertain if they continued to travel to the west side once the pandemic started and they were staying close to home for safety reasons. In these circumstances, I am not persuaded that Ms. Ross was disproportionately impacted by the Beach Avenue closure as a result of her disability.

[305] Based on the limited evidence before me, no Complainant has proven discrimination in relation to their access to Beach Avenue. I dismiss the Beach Avenue allegations.

D. Other Allegations

[306] I pause here note that the Complainants’ final reply submission appears to assert a distinct allegation that the Park Board discriminated in the provision of a service when it did not hear from them during Park Board meetings on June 8 and June 18, 2020.

[307] For the following reasons, I reject this assertion.

[308] The undisputed evidence regarding the June 8, 2020, Park Board meeting is that it was a regular meeting, meaning that members of the public are not entitled to speak, but can submit comments in writing. PDAC, Alaura Ross, and co-counsel Mr. Rankin all sent written correspondence in advance of this meeting. The fact that some of the Complainants attended the Park Board’s offices on this date and did not understand that they would be unable to speak at the meeting does not amount to the denial of a service. The Complainants have asserted that the process at the time was undemocratic; however, that is not an issue to be addressed by this Tribunal.

[309] The undisputed evidence regarding the June 18, 2020, Park Board meeting is that it was a special meeting that heard from speakers and went overtime. Earlier in this decision, I provide an overview of what happened with the large number of registered speakers, including the Complainants. Again, the Complainants appear to assert that it was undemocratic to limit the number of speakers and their allotment of time. They also take issue with the fact that the public did not have a chance to speak to the amended motion that the Commissioners ultimately voted on. I find nothing within these allegations that relates to the denial of a service based on a protected characteristic.

[310] I have not considered these allegations further.

IX CONCLUSION

[311] Dr. Richards established a disability-related adverse impact in relation to his access to Stanley Park between April 8 and June 22, 2020; however, the adverse impacts were justified in all the circumstances of the COVID-19 pandemic at the time. As a result, the adverse impact does not amount to discrimination contrary to s. 8 of the Code. He did not prove discrimination in relation to his access after June 22, 2020.

[312] None of the other Complainants met their burden under the test for discrimination under s. 8 of the Code .

[313] Accordingly, I dismiss all the complaints under s. 37(1) of the Code .

Kathleen Smith,

Tribunal Member