Styres v. Paiken
1982-05-10
Ontario Board of Inquiry
ONTARIO
CHRR Doc. 82-057
Audrey Styres
Complainant
v.
Sam Paiken
Respondent
May 10, 1982
Place:
London, Ontario
Before:
Ontario Board of Inquiry, Ian A. Hunter
Appearances by:
Peter Jacobsen, Counsel for Audrey Styres and the Ontario Human Rights Commission
Sam Paiken, on his own behalf
RACE, COLOUR AND PLACE OF ORIGIN — HOUSING ACCOMMODATION — race as basis for tenancy condition — REMEDIES — apology
Summary: The Board of Inquiry rules that Sam Paiken discriminated against Audrey Styres because she is a Canadian Indian when he made her tenancy subject to two conditions which were not imposed on his other tenants. Sam Paiken required Audrey Styres to pay two months' rent in advance and to provide two guarantors who would undertake to pay her rent if she did not.
The Board awards Audrey Styres $90 in compensation for expenses she incurred and $500 in general damages.
1On 21 October 1981, I was appointed by the Honourable Robert Elgie, then Minister of Labour, as a Board of inquiry under the Ontario Human Rights Code to hear and decide the complaint of Audrey Styres that she had been discriminated against by Mr. Sam Paiken, contrary to s. 3 of the Ontario Human Rights Code. On 29 December 1981, I sent a Notice of Hearing to all parties indicating that the Board would convene at a specified location in Hamilton at 10:00 a.m. on February 9, 1982. On 4 February 1982 Mr. Sam Paiken, the respondent, telephoned me at my office and said that he was ill and requested an adjournment. I acceded to that request and the hearing was adjourned to 19 March 1982. On that date, I was ill and unable to travel to Hamilton and the hearing was therefore adjourned to commence on April 7, 1982, in Hamilton.
2On 7 April 1982, Mr. Paiken arrived at the hearing at 10:20 a.m. Shortly after the proceedings commenced he announced that he was leaving at 12:00 noon to attend a meeting in Toronto. I treated this announcement as a request for an adjournment which in view of (a) the balance of convenience; that is, Mr. Jacobsen who had come from Toronto, the complainant who had come from St. Catharines, and myself who had come from London; and (b) the fact that Mr. Paiken had known well in advance of the hearing date and could have arranged his schedule accordingly; and (c) the relative importance of proceedings under the Ontario Human Rights Code versus a private business meeting, I declined to grant.
3Mr. Jacobsen then called his witnesses and completed the case for the Commission before noon. Mr. Paiken then gave evidence and was cross-examined by Mr. Jacobsen. Mrs. Paiken then gave evidence and was cross-examined. Mr. Paiken indicated he had no other witnesses present that he was intending to call unless I, as Board chairman, directed him to do so. I explained that he must decide that witnesses he intended to call on his own. Mr. Paiken then indicated he was calling no further evidence. At this time (approximately 12: 10 p.m.) Mr. Paiken again announced that he was leaving the hearing to go to Toronto despite the fact that arguments and submissions had not yet been made. At this point, Mr. Jacobsen very fairly offered to yield his prerogative to make first submissions to the Board in order to assist Mr. Paiken. Mr. Paiken then made submissions on his own behalf for approximately thirty minutes. As soon as he had concluded, he began to leave. I again cautioned him that I was not granting an adjournment and that Mr. Jacobsen would be given an opportunity to make arguments and submissions and that he should remain to hear these. Mr. Paiken refused, however, and announced that "you should put me in jail if you want to but I'm not staying." He then left the hearing room. In Mr. Paiken's absence, Mr. Jacobsen made oral submissions to the Board and filed with the Board three previous Board of Inquiry decisions to which he referred in argument. No oral evidence was heard in Mr. Paiken's absence. At the conclusion of Mr. Jacobsen's submission the Board adjourned.
4I have set out the conduct of the proceedings in some detail because Mr. Paiken was not represented by counsel (At the outset of the hearing, I read to Mr. Paiken s. 19 of the Code, which sets out the responsibilities of the Board of Inquiry, and I invited him to reconsider whether he wished to have legal representation, an offer he declined.)
5This fact, combined with his attitude toward the proceedings and his determination that they be concluded between 10:20 a.m. and noon, made the hearing somewhat difficult to conduct. As I have said, Mr. Jacobsen went well beyond the call of duty in accommodating Mr. Paiken by expediting his examination and cross-examination and by deferring to Mr. Paiken in making submissions to the Board. As is evident from reading the transcript, Mr. Paiken regarded the proceedings as a nuisance and was adamant that they be arranged to suit his own schedule. A Board of Inquiry under the Ontario Human Rights Code is a procedure fashioned by the legislature of Ontario to determine a serious issue: an allegation of discrimination. In the discharge of its statutory obligation a Board cannot allow its conduct to be dictated by the whim of either party.
6One other preliminary point should be mentioned. The complaint form which Audrey Styres signed alleged denial of occupancy "... of a commercial unit" contrary to s. 3(1)(a) and (b) of the Code. In five preceding paragraphs the complaint form sets out in detail the particulars of the discrimination and these paragraphs, plus the viva voce evidence, make it clear that what is complained of is a denial of, or discrimination with respect to, "housing accommodation" rather than a "commercial unit." The complainant testified that she did not draft the last paragraph of the complaint form but that it was drafted by the human rights intake officer who initially interviewed her.
7On Mr. Jacobsen's application to amend the complaint form to specify "housing accommodation" rather than "commercial unit" I held (a) that there was no prejudice to Mr. Paiken; the body of the complaint form clearly disclosed the case he had to meet and he was not in any way misled in preparing his defence; and (b) that the error was of an administrative nature and not made by the complainant. Accordingly, I amended the complaint form by substituting the words "housing accommodation" for the words "of a commercial unit." Neither complainants nor human rights intake officers are skilled pleaders and the duty of a Board of Inquiry, in my opinion, is to determine "... whether or not any person has contravened this Act" (s. 18(6)) and to determine that on the merits, not necessarily on the actual word or phrase set out in the complaint form.
THE FACTS
8Audrey Styres is a 21-year-old Cree Indian, a member of the Six Nations band. In August 1980 she moved from St. Catharines to Hamilton with the intention of taking a welding course at Mohawk College. When she first came to Hamilton she and a friend, Linda Crogan, resided at 451 St. James Street, the residence of an acquaintance named Sylvia Carpenter. Since the living arrangements at 451 St. James Street with Carpenter were temporary, Styres and Crogan decided to get an apartment together.
9In early September the complainant and Crogan were visiting a friend, Clint Taylor, who resided at 255 ½ St. James Street, a residential apartment building owned by the respondent Sam Paiken. Through conversation with Clint Taylor, Styres and Crogan learned of an impending vacancy in Apartment 2 at that address. The present occupants of Apartment 2, two gentlemen named Ron and Barry, agreed to show Styres and Crogan the apartment. The premises consisted of two bedrooms, a living room, dining room, kitchen and bathroom; in other words, self-contained housing accommodation in a residential apartment building. The present tenants were intending to vacate at the end of September.
10After viewing Apartment 2, Styres and Crogan returned to 451 St. James Street and discussed whether or not to rent it. About a week later, on September 27, 1980, they returned to 255 ½ St. James Street to discuss the rental of Apartment 2 with Mr. Barry Guitar who was Mr. Paiken's apartment supervisor at that address. After speaking with Mr. Guitar, they agreed to rent Apartment 2 and gave him a $20 deposit to hold the unit. Styres then went out and purchased approximately $20 worth of cleaning supplies and, with the superintendent's express permission, returned to Apartment 2 and spent the day cleaning it. Styres testified that she and Crogan spent eight or nine hours cleaning the apartment: floor, hallways, walls, windows and kitchen. They did this because, as Styres testified, they believed that having given the deposit they had now rented the apartment. At no time did the superintendent, Mr. Barry Guitar, indicate that they required references or that rental was subject to Mr. Sam Paiken's approval. The financial arrangements specified by Mr. Guitar were that the rent was to be $165 per month and, when they actually took possession, they would be required to pay the first month's rent plus an additional amount. I use the phrase "an additional amount" because, in her evidence, Ms. Styres said that she would be required to pay the first month's rent plus an additional month's rent; however, in the complaint form which was read to her, she indicated she would be required to pay the first month's rent plus an additional one-half month's rent. These events, of course, occurred some time ago and her memory is bound to be affected on matters of detail by the lapse of time. If required to choose between these two versions, I would prefer that told in the complaint form; that is, that the arrangement was the balance of the first month's rent on the date of taking possession plus an additional one-half month's rent. The complaint form was completed closer to the date of the actual events which were likely then to be fresher in her mind. Also, the lesser amount of money is consistent with the practice followed by Mr. Paiken's other tenants, Clint Taylor and Pauline Raid, both of whom were asked only for one month's rent at the time of occupancy. However, I am not required to make this determination since, in light of the course of events to be explained, no payment beyond a $20 deposit was ever made by the complainant.
11The day after Styres arranged the rental with the superintendent and left the $20 deposit and cleaned the apartment, she returned to St. Catharines to collect her furniture. With the help of her mother and Linda Crogan, she loaded what furniture she had (a couch, chair, end tables, lamps, kitchen utensils, bric-a-brac, etc.) onto a van which was loaned to her by the St. Catharines Indian Centre. Styres was required to purchase her own gasoline which cost approximately $20. She then drove the loaded van to 255 ½ St. James Street, Hamilton where the superintendent, Mr. Guitar, unlocked Apartment 2 for her so that she could set up her furniture inside. With the furniture now moved in and arranged in the newly-cleaned apartment. Styres testified that she was happy that she and Crogan were "getting it all together" and they then proceeded to the superintendent's apartment to pay the balance of the first month's rent plus whatever additional amount was required. When they got to the superintendent's apartment (Apartment No. 255) they saw, for the first time, the respondent Sam Paiken. Guitar introduced Styres and Crogan to Mr. Paiken and explained to him that they were the new tenants who had rented Apartment 2.
12Mr. Paiken immediately said he would like to talk to them about this in Apartment 2. So the four people – Styres, Crogan, Guitar and Paiken – went along to Apartment 2 which, of course, was now. moved into and furnished. When they all got into Apartment 2, Styres testified that Paiken told them to sit down and immediately asked: "Are you Canadian Indians?" Styres and Crogan replied: "Yes." Paiken then said: "I told myself I was never going to rent to another Indian again." Paiken then went on to explain to them that he had had Indians as tenants in the past and they had vandalized his buildings. In particular, he mentioned an Indian girl named Love who allegedly caused damage. Styres then said: "Well, just because they did it, what makes you think we'd do it? Isn't that prejudice?" Paiken then replied: "Well, I had better say something before I hang myself. You can have the apartment under these two conditions: two months' rent in advance, two highly-respectable citizens to vouch for us if we couldn't pay the rent, that they would."
13Styres testified that she could have met both conditions. However, she was now so humiliated by what she perceived to be racial prejudice that she simply replied that she and Linda would have their furniture out of the apartment the following day. She did move her furniture out of the apartment the next day and her $20 deposit was returned to her. She also spoke to Clint Taylor to ascertain whether similar conditions concerning (a) two months' rent in advance, and (b) guarantors of the rent, were imposed upon him.
14Styres testified that she was humiliated and upset by Mr. Paiken's attitude and conduct and that, after she moved her furniture out, she left Hamilton to return to St. Catharines and abandoned her plans to go to Mohawk College.
15Two other tenants of Mr. Paiken – Clint Taylor and Pauline Reid – testified. Neither Taylor nor Reid was asked for two months' rent in advance; nor were either asked for references or citizen guarantors.
16Sam Paiken, testified and did not deny the essential chronology of events as given in Audrey Styres testimony. He admitted insisting on two months rent in advance and citizen guarantors and that he "may have" asked them if they were Indians. He admitted telling Styres and Crogan about past problems with Indian tenants and he reiterated to this Board, at length, the difficulties he had encountered as the owner of this and other apartment buildings. As a result of high interest rates and tenant problems, Mr. Paiken lost his twenty-two-unit St. James Street building on January 30, 1981, after owning it for thirty years. Mr. Paiken expressed many grievances concerning the plight of landlords in these difficult economic times; and there can be no doubt that he is a hard-working, tenacious landlord who struggled valiantly, although unsuccessfully, to preserve his apartment building – "my old age pension" as he referred to them – from falling into the hands of his mortgagees. It is clear that Mr. Paiken believed then – and believes strongly now – that he has been the victim of rowdy tenants and of a government which has "stacked the deck" against landlords.
17Although Mr. Paiken emphatically denied that he discriminated against Styres because she was an Indian, his explanation of the events concerning her prospective tenancy was both vague and confused. Essentially, his story was that "sometime around" the time of Styres making the rental arrangements and leaving the deposit with Barry Guitar, Mr. Paiken spoke to Bill Gray who at that time was the president of the Hamilton Apartment Owners' Association. Mr. Paiken said he told Gray of his troubles with tenants and Gray is alleged to have told him to insist on citizen guarantors from prospective future tenants. Mr. Paiken was very vague as to when this conversation with Mr. Gray occurred in relation to September 27, 1980. Even after this conversation, Mr. Paiken admitted in cross-examination that he did not insist on citizen guarantors for all prospective tenants – "only those I decided needed extra support." When asked what criteria he used in making that determination, Mr. Paiken was vague, indeed evasive, saying only that it was a subjective judgment which he, as landlord, had a right to make. In regard to the question as to Styres and Crogan being Indian, Mr. Paiken testified: "I may have talked stupidly that day."
18The complaint, as amended, alleges a contravention of s. 3(1)(a) and (b) of the Ontario Human Rights Code. Section 3(1)(a) deals with denials of housing accommodation. On the evidence, I find that there was no denial since Mr. Paiken offered to rent to Styres and Crogan subject to the two conditions: (1) two months' rent in advance; and (2) citizen guarantors.
19Section 3(1)(b) prohibits discrimination against a person "... with respect to any term or condition of occupancy" of any housing accommodation "... because of ... race, colour, ancestry ... etc."
20The evidence clearly established that Mr. Sam Paiken imposed different terms or conditions of occupancy on the complainant from those which were imposed on other tenants. Equally clearly, in my opinion, the evidence established that he did so because Styres was an Indian. What other purpose could there have been for making that the very first question to the complainant and Crogan? Styres was not asked about her income, ability to pay, prior record as a tenant or past references. She was asked only: "Are you a Canadian Indian?" When she indicated that she was, these terms or conditions of occupancy were imposed on her which, on the evidence, were not imposed on other tenants of Sam Paiken.
21Accordingly, I hold that Sam Paiken contravened s. 3(1)(b) of the Ontario Human Rights Code by discriminating against Audrey Styres with respect to a term or condition of occupancy of housing accommodation at 255 ½ St. James Street in Hamilton because of her race, colour or ancestry.
REMEDY
22Section 19 provides that a Board of Inquiry which determines that a party has contravened the Act may order that party "... to do any act or thing that, in the opinion of the Board, constitutes full compliance with such provision and to rectify any injury caused to any person or to make compensation therefore."
23By way of remedy, Mr. Jacobsen made the following submissions: (1) that the Board order Mr. Paiken to apologize to Audrey Styres.
24I decline to make such an order for two reasons: (a) In the course of giving evidence, Mr. Paiken apologized to Audrey Styres, even though he denied that he had discriminated against her. In Mr. Paiken's own terms, I believe that that apology was sincerely intended (b) In any event, I regard an apology made under duress as an exercise in hypocrisy. An apology voluntarily offered and sincerely meant is fine; a coerced apology cannot but be insincere and pointless.
25(2) Mr. Jacobsen requested that I order Mr. Paiken to write a letter of apology to the Hamilton Native Centre. This organization was not a party to the hearing; it was not once referred to in evidence; indeed, the only reference to it was the request that Mr. Paiken be ordered to apologize to them. For the reasons already stated, plus the fact that this organization had nothing whatever to do with the complaint, I decline to make this order.
26(3) Mr. Jacobsen requested that Mr. Paiken be required to write a letter of assurance to the Ontario Human Rights Commission indicating his awareness of the provisions of the Code and his intention to comply with it in future. In my opinion, such a letter may bring home to Mr. Paiken his legal obligations and responsibilities under this legislation and I so order.
27(4) Finally, Mr. Jacobsen submitted that Audrey Styres was entitled to compensation both for the out-of-pocket expenses she incurred as a direct result of Mr. Paiken's discriminatory act (itemized as $20 for cleaning solvents; labour for one day cleaning the apartment which I fix at $50; and $20 for the gas used to transport her furnishings from St. Catharines to Hamilton: total – $90).
28In addition, Mr. Jacobsen submitted that Audrey Styres was entitled to compensation for her humiliation, inconvenience and a rather severe disruption of her plans which Mr. Paiken's discriminatory treatment occasioned. In the latter connection, Mr. Jacobsen stressed that after her treatment by Mr. Paiken, Styres gave up her plans to attend Mohawk College and returned to St. Catharines.
29in my opinion, Audrey Styres is entitled to compensation for both the out-of-pocket expenses occasioned by the respondent's discriminatory act, which I fix at $90, and compensation which may, in however indirect a way, rectify some of the humiliation and inconvenience she experienced as a result of Mr. Paiken's discriminatory conduct. Determining the quantum of such compensation is never easy. In arriving at an appropriate figure I have tried to strike a balance between the humiliation and inconvenience caused to Audrey Styres and the pressure and financial exigencies which Mr. Paiken was then experiencing which may have caused him to behave atypically. I have kept in mind that the complainant was not at all vindictive; when asked in examination-in-chief what she wanted, she indicated an apology plus compensation for her expenses. I have also considered the comments made by Professor Eberts in John v. Johnston (Report of a Board of Inquiry, September 16, 1977, at p. 22):
... A Board of Inquiry has a fair amount of leeway in setting the quantum of general damages before it can be said that the Board has overstepped its functions and taken on the job of "punishing" offending conduct instead of "compensating" its victims. The legislature has determined that a court may award a fine of up to $1000 if it finds, after a trial, that a breach of any provision of the Code has occurred (see s. 15(c) [now s. 21] of the Code). This amount suggests two things. First of all, it is a guide to the level of community disapproval for offences against the standards of behaviour set out in the Code; that level is, by this token, reasonably high. One can keep that in mind when assessing the compensation for injury to dignity that should be paid to a member of the community who has suffered discrimination. Secondly, the amount of penalty exigible after a criminal trial, with its higher standards of proof than those of a Board of Inquiry, does suggest an upper limit on the quantum of general damages which can be awarded without passing from the realm of compensation.
30Finally, I have considered three other Ontario Board of Inquiry decisions in cases which I consider to be factually similar (i.e., dealing with discriminatory treatment of Indians in housing accommodation): Copenace v. West, Board of Inquiry, November 23, 1979; Nauwagesic v. Rauman, Board of Inquiry, February 14, 1978; Nauwagesic v. Crupi, Board of Inquiry, February 6, 1978.
31With these considerations in mind, I have determined that $500 is the appropriate sum to compensate for Styres' humiliation, inconvenience and disruption.
ORDER
32This matter coming on for hearing on the 7th day of April, 1982, before this Board of Inquiry, pursuant to the appointment of Robert Elgie, Minister of Labour, dated October 21, 1981, in the presence of counsel for the Ontario Human Rights Commission and the complainant, and the respondent upon hearing evidence adduced by the parties and what was alleged by the parties, and upon finding that the complaint was substantiated by the evidence:
33It is hereby ordered that:
(1) Mr. Sam Paiken shall forthwith send a letter to the Chairman of the Ontario Human Rights Commission, 400 University Avenue, Toronto, Ontario indicating his awareness of the provisions of the Ontario Human Rights Code and his intention to comply therewith;
(2) that Mr. Sam Paiken shall pay to Audrey Styres the sum of $590 arising from his contravention of s. 3(1)(b) of the Ontario Human Rights Code.