Nancy Willis Complainant
David Anthony Phillips Properties, David Anthony Phillips and Patricia Phillips Respondents
Place: Belleville, Ontario
Before: Bernard Adell
Appearances by: D. Thomas H. Bell, Counsel for the Ontario Human Rights Commission Michael A. Black, Counsel for David Anthony Phillips Properties, et al.
HOUSING ACCOMMODATION — SOURCE OF INCOME — BENEFITS — rental housing accommodation denied to recipient of social assistance benefits
Summary: The Board of Inquiry finds that Nancy Willis was discriminated against because she was in receipt of public assistance when she was refused tenancy by David Anthony Phillips.
The decision of the Board of Inquiry turns on an assessment of the credibility of the complainant and the respondents. Where there is a discrepancy between the evidence of the parties, the Board prefers the evidence of the complainant. At the time of the discrimination, Ms. Willis was a single parent of two children, one and three years old. She applied to be a tenant of the respondents and made a deposit of one months' rent. Since a deposit of two months' rent was required, Ms. Willis borrowed money from her mother to pay the second months' rent. When she appeared to take occupancy and pay the second months' rent, Ms. Willis was refused by Mr. Phillips who told her that he did not want to rent to her because she was on welfare.
The Board orders the respondents to pay Ms. Willis $275.79 in compensation for expenses incurred because of the discrimination and $1,000.00 in general damages.
1In a complaint dated September 6, 1984, the complainant, Miss Nancy Willis, alleged that the respondents had refused to rent an apartment to her because she was receiving public assistance. Section 2(1) of the Ontario Human Rights Code, 1981, c. 53, as amended, provides that "Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of . . . the receipt of public assistance". On October 30, 1986, the Minister of Labour appointed me as a board of inquiry under section 37(1) of the Code to hear and determine the complaint.
2The hearing began in Belleville on November 27, 1986. An objection was made at the outset that the respondents had not had enough time to prepare for the hearing. Mr. Edward Kafka, a former counsel to the respondents in this matter, appeared at the beginning of the hearing with Mr. Black, the respondents' recently retained counsel, and offered an explanation of what had happened. According to Mr. Kafka, the respondent, Mr. David Phillips, had dismissed him as counsel long ago and had engaged Mr. Paul Russell to act in this matter, although no formal notice appeared to have been given to the Ontario Human Rights Commission that Mr. Russell had replaced Mr. Kafka. By the time this board of inquiry was set up, Mr. Russell was no longer acting for the respondents, a fact which may or may not have been made known to the Human Rights Commission. Notice of the November 27 hearing was sent on October 31 to the respondents and to Mr. Russell. To the best of Mr. Kafka's knowledge, the respondents did not receive the notices which were sent to them, and Mr. Kafka only received the notice via Mr. Russell on or about November 14. Mr. Kafka managed to contact Mr. Phillips on November 17 or 18, and told Mr. Phillips that he was not available to represent the respondents on November 27. Mr. Kafka submitted that the busy schedules of Belleville litigation counsel probably made it hard for the respondents, on November 17 or 18, to secure legal representation for a November 27 hearing. Mr. Black stated that Mr. and Mrs. Phillips were not at the hearing because Mr. Phillips had to take Mrs. Phillips to Kingston in order to keep a medical appointment for her regular treatments for arthritis. In Mr. Black's submission, the difficulties referred to by Mr. Kafka could have been avoided if there had been more consultation between counsel for the commission and the respondents on the scheduling of the hearing. He asked that the hearing be adjourned to another date in the near future.
3After hearing from counsel for the Commission and deliberating briefly on the matter, I rejected the request for an adjournment. Although there was no satisfactory proof that the respondents received notice of the November 27 hearing date until November 17 or 18, a period of nine to ten days was in my view sufficient to retain and instruct counsel in a matter of this sort, particularly in light of the fact that the respondents had known for a long time of the nature of the complaint against them. In addition, although the sudden and incapacitating illness of a party may justify an adjournment, an appointment for regular medical treatment falls far short of providing such justification.
Evidence Presented to the Board of Inquiry
4I will first outline the evidence of the complainant, Miss Nancy Willis. In the summer of 1984, she was 32 years old and had two children, about 1 and 3 years old. She had recently returned to Belleville after a period of living in Western Canada. She had no job, was receiving welfare, and was temporarily living with her brother. She testified that she was having a hard time finding an apartment suitable for herself and her children. Three of the apartments she looked at were owned by the respondents, but two of them were too small.
5On August 9, 1984, Miss Willis responded to a newspaper advertisement for the apartment involved in this case. It was a two-bedroom apartment above a garage at 28 Dunbar Street, Belleville, and was priced at $285.00 a month. Mrs. Patricia Phillips was in the respondents' office when Miss Willis came in to inquire about the apartment. Mrs. Phillips gave Miss Willis a key so that she could see the apartment. After looking at the apartment and finding it suitable, Miss Willis returned to the office and told Mrs. Phillips that she wanted to rent the apartment.
6Mrs. Phillips asked Miss Willis to fill out a rental application form. The form asked for the amount and source of the applicant's income. It appears to be undisputed that Miss Willis told Mrs. Phillips that she was on welfare but would very soon be receiving mother's allowance rather than welfare, and that Mrs. Phillips therefore asked her to write "mother's allowance" as her source of income. For the amount of income, Miss Willis wrote $600.00, which would have been the total of her mother's allowance and family allowance after she had rented the apartment.
7Miss Willis testified that she understood clearly, when she filled out the rental application on August 9, that she would have to pay two months' rent before her tenancy could begin — the rent for the first month and the last month of the tenancy. Upon filling out the application, she gave Mrs. Phillips one month's rent, and received a receipt dated August 9, which was produced in evidence. She testified that Mrs. Phillips indicated to her that the apartment was for rent on August 15, and that she could have it if she paid a second month's rent on that date. Because the apartment was very dirty, Miss Willis asked Mrs. Phillips if she (Miss Willis) could clean it. According to Miss Willis, Mrs. Phillips said that she could clean it over the weekend, and could pick up the key for that purpose on Friday, August 10.
8Miss Willis testified that she returned on Friday, August 10, was given the key, and proceeded to clean the apartment, using cleaning materials borrowed from her mother. She said that two long-time friends, Karen Chamberlain and Laurie Harrigan, helped her with the cleaning, Ms. Chamberlain on the Saturday and Ms. Harrigan on the Sunday. On Monday morning, August 13, Miss Willis said that she returned the key to the respondents' office, leaving it with a woman who was working in the office.
9Miss Willis testified that on Wednesday, August 15, 1984, she did not have the full amount of $285.00 required to secure the rental of the 28 Dunbar Street apartment, so she asked her mother, Mrs. Mildred Willis, to lend her the amount she needed. Miss Willis and her mother went to the Bank of Montreal, where her mother made a withdrawal and gave her $200.00. They then went to the respondents' office. When they arrived, Mr. David Phillips, whom Miss Willis had not met before, was the only person in the office. Miss Willis took out the money and offered it to Mr. Phillips. He asked her what she did, and she answered to the effect that she was on welfare or mothers' allowance. A dispute ensued, and Mr. Phillips told her that he would not rent the apartment to someone on mothers' allowance or welfare. Miss Willis protested that she had cleaned the apartment and had already paid one month's rent. Mr. Phillips told her to "get the hell out".
10Miss Willis immediately sought advice from Mr. Hockley of Hastings and Prince Edward Legal Services. According to Miss Willis, Mr. Hockley advised her to move into 28 Dunbar Street despite Mr. Phillips' refusal to accept her as a tenant, and Mr. Hockley arranged for two police officers to accompany her and her belongings to the apartment. When Miss Willis and the police officers arrived at 28 Dunbar Street, Mr. Phillips was already there, awaiting their arrival. He refused to allow Miss Willis to enter, and she did not enter.
11Miss Willis testified to the expenses she incurred and the disruption and anguish she suffered through Mr. Phillips' refusal to rent the apartment to her. That evidence is relevant to the question of remedy, and I will deal with it below in that context.
12Before Miss Willis gave her evidence, her mother, Mrs. Mildred Willis, was called by Commission counsel to testify, Miss Willis withdrawing from the hearing room during her mother's testimony. Mrs. Willis is elderly. She admitted that because of diabetes, her memory had been slipping during the six months or so before the hearing. She also admitted to a degree of deafness, although she was able to hear and understand most of what was said to her during her testimony.
13Mrs. Willis testified that she lent her daughter materials to clean an apartment. She also testified that her daughter told her she did not have enough money to pay the rent in full, and that she (Mrs. Willis) agreed to lend her the amount she needed. According to Mrs. Willis, she went to her bank with her daughter, took out some money, gave it to her daughter, and went with her daughter and her daughter's two children to the respondents' office. There, she said, they encountered Mr. Phillips, who was alone in the office. Her daughter offered Mr. Phillips the rent money, Mrs. Willis said, but he refused to take it, saying that he did not like to rent, or did not want to rent, to anyone on welfare. Mrs. Willis was present, she said, during her daughter's entire discussion with Mr. Phillips. Although Mrs. Willis admitted that she could not recall the dates or times of day when the above events occurred, her testimony was not significantly shaken on cross-examination.
14Miss Willis' friends, Karen Chamberlain and Laurie Harrigan, were also called by Commission counsel. Ms. Chamberlain confirmed that Miss Willis asked her to help clean the apartment at 28 Dunbar Street on the Saturday in question, that the apartment was dirty, and that she spent at least four hours cleaning it on that day with Miss Willis. Ms. Chamberlain also said that Miss Willis believed at the time that she would be moving in on August 15. Ms. Chamberlain does not appear to have been with Miss Willis on August 15, but she testified that she did see the rent money in Miss Willis' possession on the following day, August 16. Ms. Harrigan testified that on the Sunday in question, she spent three to four hours cleaning the apartment with Miss Willis, and that Miss Willis believed at the time that she would be able to move in shortly thereafter. Ms. Harrigan also testified that she arranged for a friend with a van, Scott Denton, to move Miss Willis and her belongings to 28 Dunbar Street on August 15, and that Mr. Phillips was there and denied them entry. Ms. Chamberlain and Ms. Harrigan gave some further evidence, which I will mention later, relevant to the question of remedy.
15After the completion of Ms. Harrigan's testimony, at about 1:00 p.m. on November 27, 1986, Mr. Bell advised that the Commission's evidence was all in. Mr. Black advised that he was still unable to produce Mr. or Mrs. Phillips, and asked that the hearing be adjourned to a later date so that they could give evidence. Although, as I have said above, I was of the view that the reason given for Mr. and Mrs. Phillips' failure to appear at the hearing on November 27 was far from satisfactory, I was reluctant to proceed without hearing their evidence. Accordingly, I granted Mr. Black's request for an adjournment.
16The hearing reconvened on December 15, 1986, with Mr. and Mrs. Phillips present. Mr. Black called Mrs. Phillips first. In order to ensure that Mr. Black had full access to his clients while presenting their case, I refused Mr. Bell's request that Mr. Phillips be excluded from the hearing room during Mrs. Phillips' testimony.
17Mrs. Patricia Phillips testified that she had been associated with her husband, Mr. David Phillips, in the property rental business for about six years. Their rental units, she said, were mostly for lower-income tenants. She indicated that in 1984, some 60 to 65 per cent of their tenants were in receipt of some type of public assistance, and that the proportion had since risen to about 80 per cent. The respondents' policy, she said, was to require the payment of two month's rent in advance — the first months and the last month's — and to rent to anyone who could make that payment. If a tenant paid only one month's rent with the rental application, that payment would be treated only as a deposit, and the unit would not be considered rented until another month's rent was paid.
18Mrs. Phillips testified that the respondents practiced no discrimination against any prospective tenant on any ground except failure to pay two month's rent in advance. Indeed, she said, she had raised three children herself on mothers' allowance for many years. She put into evidence a considerable number of rental applications — about thirty of them, received between 1983 and 1986 — which she described as being from people on some type of public assistance. Many of those applications, though not all of them, mention welfare, mothers' allowance, student loans, unemployment insurance or other kinds of government support as the source of some or all of the applicant's income. Mrs. Phillips testified that some of the applicants had been and were still tenants of the respondents, but that without further reference to her records, she could not tell how many.
19Mrs. Phillips recounted her dealings with Miss Willis in August 1984. To the best of Mrs. Phillips' recollection, she loaned Miss Willis a key to look at the 28 Dunbar Street apartment after Miss Willis had looked at one or two of the respondents' other units. Mrs. Phillips said that after looking at the apartment, Miss Willis filled out an application, paid one month's rent, and was told that she would have to pay a second month's rent before the apartment was hers. Mrs. Phillips denied any suggestion that she had told Miss Willis that the apartment would be held for her until August 15, or that Miss Willis could wait until then, or until August 16, to pay the other month's rent. When told by Miss Willis that she was on welfare and would be going on mothers' allowance, Mrs. Phillips telephoned the office which administers mothers' allowances to confirm that fact. She then told Miss Willis to put "mothers' allowance" on the application form, rather than "welfare".
20As for the key to the apartment, Mrs. Phillips testified that although she required Miss Willis to sign for the key when she took it to look at the apartment, she (Mrs. Phillips) could not recall Miss Willis ever bringing it back. Nor could Mrs. Phillips recall Miss Willis saying anything about wanting to clean the apartment, or coming back the next day — Friday, August 10 — to obtain the key in order to do the cleaning. Miss Willis could not have left the key with another woman in the office, Mrs. Phillips said, because at this time the respondents had no office employees.
21Mrs. Phillips testified that on Sunday, August 12, Mr. Phillips asked her if she had rented the apartment in question. She replied that she had not, but had only taken a deposit of one month's rent on it. On cross-examination, she admitted that she knew that Mr. Phillips had gone to 28 Dunbar Street on the Sunday and had seen Miss Willis and at least one other person cleaning the apartment.
22The final witness was Mr. David Phillips. He testified that the respondents owned sixty rental units in 1984, and that their rental policy was and is clear and simple. A prospective tenant needed to put down the first and last month's rent before a unit would be rented to him or her. If a tenant did that, he said, nothing else mattered. Money, he strongly insisted, was his only reason for being in business, and he had never turned down money in his life. Landlord and tenant law, he said, makes it expensive to evict a defaulting tenant, and requiring two months' rent at the time of rental is a common means of limiting a landlord's financial exposure. The respondents' rental units are intended for low income tenants, and about 80 per cent of their tenants, Mr. Phillips testified, are on welfare or mothers' allowance. However, in response to a question from Mr. Black about whether he ever receives referrals or prospective tenants from welfare agencies, Mr. Phillips, after replying in the affirmative, added that it costs him money. The reason, he said, was that although the welfare agencies guarantee that the rent will be paid, they do not provide the money immediately.
23It was not unusual, Mr. Phillips claimed, for the respondents to have payments of one months' rent in hand at the same time from several prospective tenants, as deposits on the same rental unit — as many as six at a time. All of those aspiring tenants, he said, are told that the unit on which they have paid one month's rent will remain on the market, and in the newspaper, until someone comes in with the second month's rent. When that happens, the amounts put down by all the others are refunded to them.
24On examination in chief, Mr. Phillips gave an account of what happened on Sunday, August 12, 1984, the second of the two days when Miss Willis said she was cleaning the apartment at 28 Dunbar Street. His son, who was working in a nearby rental unit, telephoned to tell him that someone was in the 28 Dunbar Street apartment. Mr. Phillips did not think there should be anyone there, so, he said, when he got home he asked Mrs. Phillips if she had rented the apartment, and she answered that she had only taken a deposit on it and had not been given the key back. When asked by his own counsel whether he intended to do anything about it during the weekend, Mr. Phillips replied that he did not, as the respondents do not do things on Sunday.
25On cross-examination, a somewhat different picture emerged. Mr. Phillips said that after hearing from his son, he got into his car and went to 28 Dunbar Street to have a look. He said he saw at least two people, who appeared to be women, moving around inside the building. However, he said, he did not get out of his car, as he was not sure whether the apartment had been rented, could not find that out until Monday, and did not want to cause a needless confrontation. If the apartment turned out not to have been rented, he testified, he would simply have his son change the lock. When asked whether he checked the apartment after the weekend, he said that he did not.
26Mrs. Phillips having testified that prospective tenants were required to sign for keys loaned to them in order to look at apartments, Mr. Phillips was asked on cross-examination whether he could produce the papers on which those signatures were kept, to support the assertion by himself and Mrs. Phillips that Miss Willis was in the apartment without authorization on the Saturday and Sunday. Mr. Phillips testified that those records were thrown away, as, in his words, "this room (meaning the meeting room in which the hearing was being held) isn't big enough to keep them."
27Mr. Phillips' account of the important conversation between himself and Miss Willis on or about August 15 differed substantially from the accounts given by Miss Willis and her mother. Mr. Phillips said that on the Monday, which would have been August 13, Miss Willis came into the office with an old woman and a baby, made up some story about not having the second month's rent, and wanted to make a deal. No deals, Mr. Phillips replied; no second month's rent, no rental. Miss Willis, he said, offered him no money. If she had indeed been cleaning the apartment on the weekend, Mr. Phillips testified, "that would have been an incentive to take her — she'd have been cleaner than most."
28On cross-examination, Mr. Phillips also gave an account of the events surrounding Miss Willis' attempt to move into the apartment. He explained that he knows people who listen to police band radio, and that he pays them for letting him know when something involving his affairs comes over that radio. On the day in question, apparently August 15, he received a call from one of those people to the effect that a policeman at 28 Dunbar Street had radioed for assistance in the form of another policeman. Mr. Phillips was very quickly on the scene. A half-ton truck pulled into the driveway, Miss Willis got out, and one of the policemen told Mr. Phillips that Mr. Hockley had given them instructions to kick the door in, if necessary, to enable Miss Willis to move in. Mr. Phillips warned the policeman that that would be illegal and unwise, and the police then backed off and Miss Willis did not move in.
29A few moments later in his cross-examination, Mr. Phillips asserted his low regard for many welfare and mothers' allowance recipients. With reference to Miss Willis, he said that he had "seen people like her give their children away."
Assessment of the Evidence
30This case essentially involves a question of credibility. It is clear that Mr. Phillips refused to rent the 28 Dunbar Street apartment to Miss Willis when she came to his office on or about August 15, 1984. Was that refusal based, as Mr. Phillips claims, on Miss Willis' failure to pay a second month's rent at the time, or was it based, as Miss Willis claims, on the fact that she was in receipt of public assistance?
31Like many questions which involve an assessment of conflicting testimony, this question is not easy to answer. There are circumstances or considerations which tend to support each of the two versions of what happened. I will first review those which favour Mr. Phillips' version.
321. The nature of the respondents' business. Mr. and Mrs. Phillips' testimony, which was uncontroverted in this respect, is that a considerable majority of their tenants were and are in receipt of some form of public assistance, and that the living accommodation which the respondents offer is aimed at low-income tenants. Also largely uncontroverted (except for the evidence of the incidents leading to this complaint) was the respondents' evidence that they followed, and continue to follow, a rigid policy of renting to any tenant, whatever his or her race, religion or source of income, who pays both the first month's and last month's rent at the time the tenancy agreement is made. I believe Mr. Phillips was exaggerating when he painted the picture of several prospective tenants commonly paying one month's rent as a non-binding deposit on the same unit, then scrambling to be the first to come up with the crucial second month's rent. However, as he pointed out, the policy is not irrational if money is one's only concern.
332. An important point in the testimony of both Miss Willis and her mother was that Miss Willis had enough money on August 15 to pay the second month's rent of $285 because they had stopped at Mrs. Willis' bank on their way to the respondents' office and Mrs. Willis had drawn out enough money to lend Miss Willis the $200 needed to make up the sum of $285. I am considerably less comfortable about accepting the testimony than I would be if it had been backed up by the production of the relevant bank records, which I expect would have been readily available.
343. As Mrs. Mildred Willis readily acknowledged, her hearing was not very good at the time of the events in question, and her memory has since begun to fail her. She could not recall such details as the date or the time of day of the encounter with Mr. Phillips in his office. On the other hand, her recollection of the central facts was quite clear and was not shaken on cross-examination. One possibility which was raised in argument, but which perhaps arises from Mrs. Willis' uncertainty about dates, is that her loan to Miss Willis might have been for the first payment on August 9 rather than the second one on August 15, and that Mrs. Willis might have confused the two. However, that possibility is discounted by Mrs. Willis' clear recollection that it was Mr. Phillips rather than Mrs. Phillips who was in the office at the time, and by Mr. Phillips' acknowledgement that "an old woman" (undoubtedly Mrs. Willis) was there when he refused to rent the apartment to Miss Willis.
354. Miss Willis testified that Mrs. Phillips told her on August 9 that the apartment was for rent from August 15. From the fact that she put forth the time and effort to clean the apartment over the weekend, and that she prevailed upon Ms. Chamberlain and Ms. Harrigan to help, it would appear that Miss Willis did not expect the apartment to be taken by anyone else before August 15. Yet Mrs. Phillips testified, quite credibly, that the respondents' apartments were for rent not only from the 1st or 15th of the month but from whenever an applicant paid the required two months' rent. I doubt that Mrs. Phillips told Miss Willis that the apartment was not available until August 15 or that Mrs. Phillips undertook to hold it for her until that date, and Miss Willis' credibility is not helped by her testimony to the contrary. However, whether the apartment was in fact available only on August 15 or from an earlier date is not directly relevant to what transpired between Mr. Phillips and Miss Willis on August 15, as it seems that no one else tried to rent the apartment before August 15. Mr. Phillips' testimony indicated that it was on August 16 that the apartment was rented to another tenant.
36I will now review the circumstances and considerations which point in the other direction, in support of Miss Willis' version of what happened in Mr. Phillips' office on August 15.
371. Although the evidence shows that a large proportion of the respondents' rental business is with public assistance recipients, Mr. Phillips made his distaste for such people quite clear during his testimony. As I have noted above, at one point during cross-examination, in the absence of any particular provocation by Commission counsel, Mr. Phillips said sharply and contemptuously, with reference to Miss Willis, "I've seen people like her give their children away". I do not place a great deal of weight on this outburst, given the pressures of cross-examination and given Mr. Phillips' outspoken manner and apparently volatile temperament. Verbally abusing someone because she is on public assistance is not the same thing as refusing to rent an apartment to her because she is on public assistance. However, Mr. Phillips' resort to such abuse surely lessens the weight which can be given to the contention that because he did so much business with public assistance recipients, he would never discriminate against one of them in the course of that business.
382. As I have noted above, Mr. Phillips acknowledged that welfare agencies had referred prospective tenants to him, but he added the comment that it cost him money because those agencies provided a guarantee rather than immediate payment. That comment indicated that there was a finaancial reason — and Mr. Phillips took pains to emphasize the overriding importance he placed on financial concerns — why he might not always be as happy to rent to public assistance recipients as to others. Again, this is not an item on which I place a lot of weight, but I must take it into account.
393. Mr. Phillips' account of what he did on Sunday, August 12, when his son told him that there were people in the 28 Dunbar Street apartment, was convoluted and difficult to believe. That he would drive up to the premises, investigate only to the extent of looking through his car window, drive off when he saw that there were indeed people in the apartment, and do nothing other than make a mental note to look into the matter later, is so inconsistent with his admittedly aggressive and outspoken way of doing business as to be very hard for me to accept. It is true that the August 12 events are not part and parcel of the more important later incident, when Mr. Phillips refused to rent the apartment to Miss Willis. However, the lack of credibility of his version of the August 12 events adds to my doubts about his version of the latter incident.
404. The generally very assertive and self-confident tone of Mr. Phillips' testimony changed to an almost tentative tone as he recounted what was said between himself and Miss Willis when he refused to rent her the apartment. His evidence that Miss Willis told him she did not have the money to pay a second month's rent, and that she tried to make a deal with him to pay it later, was put almost in the manner of a hypothesis about what might have happened. It was not expressed in anything like the forceful way in which I would have expected Mr. Phillips to put what he must have realized was the most crucial part of his testimony.
415. Although Mrs. Phillips did not claim to recall exactly what use she had let Miss Willis make of the 28 Dunbar Street key, Mrs. Phillips did testify that she did not receive the key back after Miss Willis had looked at the apartment on August 9. However, both Mrs. Phillips and Miss Willis testified that Miss Willis came back to the respondents' office after looking at the apartment, filled out a rental application in Mrs. Phillips' presence and paid Mrs. Phillips one month's rent. It is difficult to believe that Mrs. Phillips, who had Miss Willis sign for the key before looking at the apartment, would fail to require Miss Willis to return the key before leaving the office on August 9. Yet Mrs. Phillips claimed that she did not give Miss Willis the key on August 11, for the purpose of cleaning the apartment or for any other purpose, and she suggested, in effect, that Miss Willis retained the key surreptitiously, entered the apartment without authorization on the weekend and did not return the key after the weekend. When asked whether he could produce the written records which might clarify when Miss Willis had signed out and returned the key, Mr. Phillips, as I have noted above, replied that those records had been thrown out, and flippantly added that "this room isn't big enough to keep them". Mr. and Mrs. Phillips' testimony about Miss Willis' possession of the key was, in sum, not quite as credible as Miss Willis' testimony on the matter.
42At one point in his testimony, Mr. Phillips said that tenants of his had, in his experience, made direct and explicit ethnic slurs against him. The evidence of any complainant or witness who is shown to have vilified a respondent in that way should obviously be treated with the greatest of caution. However, Mr. Phillips did not claim that the complainant or anyone connected with her in this matter had ever subjected him to that sort of abuse.
43As I have tried to make clear above, the evidence does not leave me free from any doubt about the merits of the complaint. However, the weaknesses and inconsistencies in the respondents' evidence are significantly greater than those in the evidence led in support of the complaint. In my judgment, where there are conflicts in the evidence, the testimony of Miss Willis and the other witnesses who testified in support of the complaint is generally to be preferred to that of Mr. Phillips and Mrs. Phillips. In particular, although I do not feel that I have heard a completely accurate account from any witness of the conversation between Miss Willis and Mr. Phillips on or about August 15, 1984, when Mr. Phillips refused to rent the apartment to her, I am satisfied on a balance of probabilities that Miss Willis is largely telling the truth about that conversation and that the refusal was due to the fact that she was in receipt of public assistance.
44Allegations of discrimination in breach of the Human Rights Code are serious allegations which should not lightly be upheld. There is a clear obligation on boards of inquiry to scrutinize the evidence brought in support of such allegations with sufficient rigour to discourage the use of the Code to harass unpopular or controversial individuals. However, the Code is not a criminal statute designed to punish, but a remedial statute designed to prevent unjust discrimination. The civil standard is the appropriate standard of proof under such a statute, and that standard has in my judgment been met by the Commission in this case.
Remedy
45In infringing a right of the complainant under section 2(1) of the Human Rights Code, 1981, the respondents have also contravened section 8 of the Code, which provides that "No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part." Where such an infringement is found to have occurred, section 40(1)(a) of the Code authorizes a board of inquiry to:
(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in regard to the complaint and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
46The complainant, Miss Willis, moved from Belleville to Oshawa in 1985 and is not asking that the respondents be directed to provide her with accommodation.
47Commission counsel asked that the respondents be directed to put up, on their business premises, cards provided by the Ontario Human Rights Commission and designed to make tenants and prospective tenants aware of their rights under the Code. That is, in my view, an appropriate way of attempting to secure "compliance with [the Code] in respect of future practices", as authorized by section 40(1)(a), and it is a direction which I will make.
48The first part of section 40(1)(b) authorizes me to "direct [the respondents] to make restitution, including monetary compensation, for loss arising out of the infringement . . ." Commission counsel requested that Miss Willis be awarded out-of-pocket expenses which she incurred as a result of Mr. Phillips' refusal to rent her the apartment. I will deal with each item for which reimbursement was claimed.
1. $80 FOR CLEANING THE APARTMENT
49The evidence of Miss Willis, Ms. Chamberlain and Ms. Harrigan was that Miss Willis worked for some four hours on Saturday, August 11, and about four hours on Sunday, August 12, to clean the apartment, and that Ms. Chamberlain worked with her for that period on the Saturday and Ms. Harrigan on the Sunday. Miss Willis paid Ms. Chamberlain and Ms. Harrigan $20 each for their cleaning work — a sum which I find to be reasonable. From the evidence, I believe that on the Friday, Mrs. Phillips gave Miss Willis at least tacit permission to clean the apartment. Mr. Phillips became aware on the Sunday that it was in fact being cleaned, was probably aware that it was being cleaned with Mrs. Phillips' consent, and did nothing to stop Miss Willis from continuing to clean it. When Mr. Phillips refused to rent Miss Willis the apartment in breach of section 2(1) of the Code, the respondents became the beneficiaries of the efforts of her and her friends. It is clear that I have the authority under section 40(1)(b) to order the respondents to indemnify Miss Willis for the amounts she paid to Ms. Chamberlain and Ms. Harrigan for their help with the cleaning, and I will do so. I believe that I also have the authority to award payment to Miss Willis for her own work in cleaning the apartment, as requested by Commission counsel, and I will make such an award in the amount claimed — $40. The total award with respect to the cleaning of the apartment is therefore $80.
2. $50 FOR MOVING EXPENSES
50Miss Willis paid Scott Denton $50.00 for moving her belongings to 28 Dunbar Street on August 15, 1984, and taking them away when she was denied entry to the apartment. She is entitled to reimbursement for this expenditure, in the amount claimed.
3. $130 TO MS. HARRIGAN FOR STORING MS. WILLIS' BELONGINGS
51The evidence indicates that Ms. Harrigan stored Miss Willis' belongings for about six weeks after August 25, 1984, while Miss Willis lived with her brother's family, and that Miss Willis paid Ms. Harrigan $130 for that service. That amount appears reasonable, as Miss Willis and her children had thirty-eight boxes of household and personal effects. However, if the respondents had rented the apartment to her, a certain proportion of her rent would have gone toward space for her belongings. I will therefore reduce the amount awarded for this item to $60.
4. $64.29 FOR COTTAGE RENTAL FOR AUGUST 17, 18 AND 19, 1984
52When Mr. Phillips turned Miss Willis away from the apartment at 28 Dunbar Street on August 15, she and her children spent a night or two in a hotel, for which no reimbursement was claimed. After that, Ms. Evelyn Hitchon of Hastings Prince Edward Legal Services let Ms. Willis stay in Ms. Hitchon's cottage at Oak Lake for three days. Ms. Hitchon's unpaid bill to Miss Willis is for three days' rental at a rate of $150 a week, or $64.29. The rent for the 28 Dunbar Street apartment would have been $285 a month, or about $28.50 for three days. I will reduce the sum of $64.29 by $28.50 to $35.79, which I will direct the respondents to pay Miss Willis.
5. $41.50 FOR TRANSPORTATION TO AND FROM THE OAK LAKE COTTAGE
53Two travel vouchers bearing Ms. Hitchon's signature were adduced in support of this item, and Miss Willis testified that they were for necessary transportation provided for her by Ms. Hitchon while she and her children were at Ms. Hitchon's cottage. Neither the vouchers nor the explanation provided was clear enough to support reimbursement for this item.
6. $108 FOR CHILD CARE FOR THE SECOND DAY OF THE HEARING
54Commission counsel recalled Miss Willis on the second day of the hearing to testify in support of a claim for reimbursement for child care expenses for that day. Miss Willis has lived in Oshawa since leaving Belleville in 1985. She stated that her common law spouse had to take the day off work to look after their two small children so that she could travel to Belleville and attend the second day of the hearing. She produced a letter from her common law spouse's employer to the effect that he works nine to ten hours a day at a rate of $12 an hour, which would amount to at least $108 a day. The need for a second day of the hearing was occasioned by Mr. and Mrs. Phillips' unjustified failure to attend on the first day, which led to an adjournment at their counsel's request. It was a direct and readily foreseeable result of that failure on the respondents' part that Miss Willis, as the complainant in this matter, would have to come to the second day of the hearing and would incur thereby child care expenses. However, as the respondents' counsel argued, she probably had enough notice to be able to arrange such care for less than $12 an hour. A sum of $50 should have been sufficient to cover child care costs for the day, and I will award that amount.
55The total amount that I will award to the complainant as special damages, with respect to the items listed above, is $275.79.
56The second part of section 40(1)(b) of the Code provides that "where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish". Commission counsel asked that Miss Willis be awarded general damages of $1,250 for mental anguish.
57Miss Willis testified to the disruption and grief which she and her children suffered through Mr. Phillips' refusal to rent her the 28 Dunbar Street apartment. They first stayed in a hotel for a day or two, then at Ms. Hitchon's cottage for three days, then with her sister's family for some six weeks until she was able to find another apartment on October 1, 1984. The physical arrangements and personal relations at her sister's home were very unsatisfactory, she said. As a result, her children, who were only one and three years old at the time, were badly upset and would not eat or sleep normally for the entire six week period and for some time afterward. She did not claim that Mr. Phillips' rejection of her as a tenant damaged her self-esteem or caused her any other distress of that sort; she confined her testimony to the distress resulting from the lack of an adequate place to live. Her evidence in that regard was not challenged, and I found it to be reasonably credible. I am satisfied that Miss Willis and her children suffered considerable mental anguish, over at least a six-week period, from Mr. Phillips' refusal to rent her the apartment in question.
58It is not entirely clear whether, to have acted "wilfully" within the meaning of the latter part of section 40(1)(b), a respondent need only have intended to do the act which constituted the infringement or must also have had the specific intention to cause mental anguish. The evidence satisfies me on a balance of probabilities that Mr. Phillips intentionally refused to rent the apartment to Miss Willis, that he intended the refusal to be for the reason that she was in receipt of public assistance, that he communicated those intentions to her, and that he reiterated his rejection of her as a tenant when she subsequently tried to move in. However, I would not be prepared to find that he willed upon her the anguish which she and her children suffered as a consequence of his refusal.
59If Mr. Phillips did not act "wilfully" within the meaning of section 40(1)(b), did he act "recklessly", within the meaning of that provision, in bringing about the anguish suffered by Miss Willis and her children? Reckless conduct, in the context of section 40(1)(b), is defined in Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, at para. 18546 (Cumming), as being conduct which is:
such as to evince disregard of or indifference to consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly. The state of mind of the contravenor pays no regard to the probable or possibly injurious consequences accompanying her conduct, and the contravenor persists in spite of such knowledge.
See also Underwood v. Board of Commissioners of Police for the Town of Smith Falls (1986), 1985 CanLII 5257 (ON HRT), 7 C.H.R.R. D/3176, at para. 25462 (Hubbard).
60I think Mr. Phillips showed enough indifference to or heedlessness of the likely effects of his conduct on Miss Willis and her children that he must be held to have acted recklessly within the meaning of section 40(1)(b). Any attention at all on his part to Miss Willis' circumstances would surely have made him realize that mental anguish was likely to result. He acknowledged, in his testimony, that she had a baby with her in his office, and he probably also noticed that she had another small child with her. It was undoubtedly clear to him that Miss Willis had had difficulty finding a place to live, and the fact that she had (to his knowledge) been cleaning the apartment over the weekend must have made him aware that she expected to move in.
61It is true that, given her need for the apartment, Miss Willis appears to have taken an irrational risk by waiting until August 15 to tender the second month's rent to the respondents. If she had lost the apartment on August 13 or 14 to another prospective tenant who had tendered the two months rent before her, she would have had no claim against the respondents. However, that risk did not materialize, and the fact that she waited until August 15 to bring in the second month's rent, while it is somewhat troubling to me, is not in my view enough to cast more than a slight doubt upon the credibility of her evidence on the severity of the impact on her and her children of Mr. Phillips' refusal to rent her the apartment.
62What amount of monetary compensation is appropriate to provide redress for the mental anguish suffered by Miss Willis and her two small children over a period of six weeks or more as a result of the respondents' breach of sections 2(1) and 8 of the Code? As I have said, counsel for the Commission asked for an award of $1,250. Interest was not claimed.
63Awards of general damages under the Human Rights Code, 1981, should be high enough to provide real redress for the harm suffered, insofar as money can provide such redress, and high enough to encourage respect for the legislative decision that certain kinds of discrimination are unacceptable in our society. See the Cameron and Underhill decisions, referred to above. No award should be so low as to amount to a mere "licence fee" for continued discrimination. At the same time, fairness requires that an award bear a reasonable relationship to awards made by earlier boards of inquiry.
64I have found no reported case involving refusal of accommodation on the ground of receipt of public assistance. That ground has been just as explicitly made a prohibited ground of discrimination as any of the others listed in section 2(1) of the Code. However, the fact of being in receipt of public assistance does not go to the core of a person's being in the same way as race, creed, sex, age or most of the other attributes which are prohibited grounds. Caution is called for in assessing a claim that discrimination on the basis of receipt of public assistance has caused deep or continuing mental anguish.
65I have come to the conclusion that an award of $1,000 to the complainant for mental anguish is appropriate in the circumstances of this case.
Order
66Having found the respondents to be in breach of section 2(1) and section 8 of the Human Rights Code, 1981, S.O. 1981, c. 53, I order and direct them to do the following:
To post prominently, at their principal place of business and at any other premises owned or occupied by them where they regularly transact business with prospective tenants, cards prepared by the Ontario Human Rights Commission for the purpose of communicating information on rights and duties under the Human Rights Code, 1981.
To pay forthwith to the complainant the amount of $275.79 as special damages.
To pay forthwith to the complainant the amount of $1,000.00 as general damages.
