Dominion Management v. Velenosi, 1989 CanLII 9019

Dominion Management v. Velenosi

1989-04-07

Ontario Board of Inquiry Decision under the HUMAN RIGHTS CODE, 1981, S.0. 1981, c. 53

Mary O. Velenosi Complainant

v.

Dominion Managment and Toby Barnett Respondents

Date of Complaint: February 18, 1985

Date of Decision: April 7, 1989

Comm. Decision No.: 361

Appearances by: Anne Molloy and Sharon Ffolkes-Abrahams, Counsel for Ontario Human Rights Commission Sidney Barnett, Counsel for the Respondents

HOUSING ACCOMMODATION — rental accommodation denied on the basis of age — AGE DISCRIMINATION — rental accommodation denied — DAMAGES — determining quantum by considering previous awards

Summary: The Board of Inquiry finds that Dominion Management and Mrs. Toby Barnett discriminated against Mary Velenosi when they refused her an apartment because of her age.

Ms. Velenosi was thirty-seven years old at the time of the discrimination. She applied for an apartment at 17 Robinson in Hamilton but was denied it because the owners of the apartment building prefer to rent to older wealthy couples. The Board finds that though there may have been other reasons, Ms. Velenosi's age was one reason for refusing to rent the apartment to her.

The Board orders the respondents to notify the Ontario Human Rights Commission of all applications for tenancy at 17 Robinson for a two-year period and to pay Ms. Velenosi one thousand dollars in compensation for the injury to her feelings and self-respect caused by the discrimination.

Introduction

1I was appointed on September 22, 1988, as a board of inquiry under the Ontario Human Rights Code, 1981 (hereafter referred to as the "Code"), to hear and decide the complaint made by Mrs. Mary Velenosi against Dominion Management, P. Barnett Construction Limited, Standbar Properties Limited and Mrs. Toby Barnett, alleging that her "right to equal treatment with respect to occupancy of accommodation without discrimination has been infringed because of her age, contrary to ss. 2(1) and 8 of [the Code]".

2The hearing in respect of this complaint took place in Hamilton on February 22 and 23, 1989.

3The original complaint was signed on February 18, 1985. It was amended on June 16, 1985, in order to remove from the last paragraph additional allegations of discrimination on the basis of marital status and ancestry, leaving as the sole basis of the complaint the allegation of age discrimination. The complaint was further amended on January 16, 1989, so as to change the name "Stuart" to "Stanley" throughout the document. Finally, upon the motion of the Ontario Human Rights Commission (hereafter referred to as the "Commission"), and with the acquiescence of the respondents, the complaint was amended once again at the commencement of the hearing, so as to add P. Barnett Construction Limited and Standbar Properties Limited as respondents.

4The complaint in its final form reads as follows:

1. On Friday, January 25, 1985, I saw an "advertisement in the Hamilton Spectator" for a one-bedroom apartment for rent at 17 Robinson, in Hamilton.

2. I telephoned a Mr. Stanley at approximately 2:30 p.m. that same Friday afternoon requesting an appointment to view the said apartment. I was given an appointment for 6:30 p.m. by Mr. Stanley for me to view the apartment.

3. That same evening at 6:00 p.m., I telephoned Mr. Stanley to inform him I would be fifteen minutes late. Instead I spoke with a Mrs. Barnett. I requested her to give Mr. Stanley the message.

4. On speaking with Mrs. Barnett, she told me that she wanted an older couple to rent the apartment.

5. At 6:50 p.m. I went to see Mr. Stanley at the apartment building. He showed me the apartment. I told him I would take it. He instructed me to fill out an application form and leave a cheque for $395.00 which I did. Mr. Stanley also told me that a fireman had an application for the same apartment. However, Mrs. Barnett only allows professional people with their own business in that building.

6. I told Mr. Stanley my yearly income was around $40,000.00 and I was President of my own limited company. He said, "that's good, you should have no problems. I will call you back on Monday evening," January 28, 1985.

7. On Monday, January 28, 1985, I telephoned Mr. Stanley's office and he told me his wife was at Mrs. Barnett's office and he did not know who got the apartment.

8. At 7:00 p.m. on Monday, January 28, 1985, I telephoned Mrs. Barnett and inquired about the apartment. She said, "I am looking for an older couple in their fifties and I will wait until I locate the said couple."

9. At about 8:00 p.m. on Monday, January 28, 1985, I telephoned Mrs. Barnett and told her I was coming to pick up my cheque I left as a deposit on the apartment. However, when I got there, I spoke to Mrs. Stanley, the superintendent. I told her to keep the cheque and to tell Mrs. Barnett I am laying charges against her.

10. On Tuesday, January 29, 1985, the same apartment for rent again appeared in an advertisement in the Hamilton Spectator.

11. I am a woman 37 years old, and am presently separated from my husband. In view of what has happened to me, I have reason to believe that my right to equal treatment with respect to occupancy of accommodation without discrimination has been infringed because of my age, contrary to Sections 2(1) and 8 of the Human Rights Code, 1981, Statutes of Ontario, Chapter 53, as amended by 1984, Chapter 58, s. 39, and 1986, Chapter 64, s. 18.

5Through the respondent companies the Barnett family owns and manages a number of apartment buildings in the City of Hamilton, including the building located at 17 Robinson Street from which the complainant alleges she was excluded because of her age. Evidently P. Barnett Construction Limited builds and owns apartment buildings which Dominion Management and Standbar Properties Limited manage. Although Mr. Sidney Barnett, who appeared as counsel for the respondents, is not personally a respondent in this matter, he is an officer of these companies, in which capacity he gave evidence as to the practices generally followed in leasing the apartments at 17 Robinson. His mother, Mrs. Toby Barnett, appears to have made most of the decisions regarding applications to rent accommodation in that building, and paragraph 8 of the complaint suggests that it was she who refused the complainant accommodation because of her age.

6Mrs. Velenosi has for some years owned and managed a small trucking company that delivers mail to designated areas under contract with the post office. She has been steadily employed as well by the Hamilton Spectator newspaper as a truck driver. Her combined annual income in 1985 was about $40,000. At the time of the events giving rise to her complaint Mrs. Velenosi's marriage had broken down and she had been looking for accommodation of her own in downtown Hamilton near where she worked and in which area the apartment building at 17 Robinson is located.

7The law in relation to this complaint is both clear and well-established, and the issues to which it gives rise are ones of fact. Indeed, the argument made on behalf of the respondents consisted entirely of Mr. Barnett's representations as to the way in which the evidence ought to be construed. No submissions were made by him regarding questions of law, and the Commission's contentions as to the applicable law went undisputed. That being so, it is useful to begin by setting forth the law with respect to liability in circumstances such as those involved herein, and then to review and analyze the evidence in that light.

The Applicable Law

8The provisions of the Code alleged in the complaint to have been contravened by the respondents read as follows:

2.(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of . . . ancestry, . . . age, marital status. . . .

8. No person shall infringe or do, directly or indirectly, anything that infringes a right under this part.

9Obviously, if the conduct of the respondents amounted to a refusal to rent accommodation to the complainant because of her age, then her right under the Code would have been unlawfully infringed by them. It was argued by counsel for the Commission that, in establishing that causal connection, it is unnecessary to prove that the action complained of was based solely upon the prohibited consideration of age. In her submission, it is enough to show that the prohibited ground of discrimination was one of the factors in the mind of the respondent in making the decision, or taking the action, in question. Counsel for the respondent did not suggest otherwise.

10It is abundantly clear that where discrimination upon a prohibited ground is one of a number of reasons for the taking of an action that becomes the subject of a complaint under the Code, then that is sufficient to constitute an infringement of the provisions of the Code, provided it was a proximate cause of that action. (See, for instance, R. v. Bushnell Communications Ltd., (1974), 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288; Iancu v. Simcoe (County) Bd. of Education (1983), 1983 CanLII 4720 (ON HRT), 4 C.H.R.R. D/1203; Underwood v. Smiths Falls (Town) Commissioners of Police (1986), 1985 CanLII 5257 (ON HRT), 7 C.H.R.R. D/3176; Taylor v. Via Security Systems, Inc. (1987), 1986 CanLII 6550 (ON HRT), 8 C.H.R.R. D/3925; Horton v. Niagara (Regional Municipality) (1988), 1987 CanLII 8548 (ON HRT), 9 C.H.R.R. D/4611. In the Horton case, it was observed that:

It is accepted in human rights jurisprudence that even if a breach of the Code is only one among other causes leading to the action in question, then the entire action is tainted. . . . In Hendry v. Liquor Control Board of Ontario (1980), 1980 CanLII 3901 (ON HRT), 1 C.H.R.R. D/160, Chairman D. Soberman noted that when a ground was one "that played a part even if subconsciously and even if present with other causes" it constituted a prohibited ground. He further ruled in [an unreported decision] that if the prohibited ground was "present in the mind" of the employer then the action of the employer was tainted and the Code was breached.

11While the principal argument advanced by counsel for the Commission was that the respondents had unlawfully discriminated against the complainant directly, having regard to the evidence adduced during the hearing she argued in the alternative that the circumstances would at least amount to indirect or "constructive" discrimination as provided for in section 10 of the Code. She suggested that, since this alternative position "is one that is not pleaded, [it] will require an amendment" should it prove necessary to pursue it. Section 10 reads as follows:

10. A right of a person under Part I is infringed where a requirement, qualification or consideration is imposed that is not discrimination on a prohibited ground but that would result in the exclusion, qualification or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or consideration is a reasonable and bona fide one in the circumstances; or

(b) it is declared in this Act that to discriminated because of such ground is not an infringement of a right.

12Counsel for the Commission said that while she was "not asking for an amendment at this time," should the board "find that there is no direct discrimination on the basis of age, [the board] might want to consider whether there was constructive discrimination." (See the transcript of evidence and argument for February 23, at p. 68). It was her submission that a board has the authority so to proceed by virtue of ss. 38(1)(a) and 40(1) of the Code.

13I have no doubt that the board's mandate is not confined to a consideration of what is set forth in the complaint. Rather, a board is required by ss. 38(1)(a) and 40(1) of the Code to hold a hearing to determine whether "a right of the complainant under the Act has been infringed" and, after hearing the circumstances of the complaint as presented by the parties, to decide whether "a right of the complainant under Part I has been infringed" in contravention of s. 8. As was observed by Professor Ratushny in Cousens v. Canadian Nurses Assn. (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365, which dealt with this same point: "The written complaint is not, therefore, in the nature of an information or indictment in a criminal case. Rather it serves as general notice to a party in an administrative hearing." In the Cousens case it was sought to introduce additional grounds of discrimination at the outset of the hearing. Although he ruled favourably in this regard, Professor Ratushny indicated that the respondent was entitled to an adjournment to enable its counsel to undertake such further preparations as might seem necessary.

14In my opinion, the "alternative submission" made by the Commission requires neither an amendment to the complaint, nor would it necessitate an adjournment even if one had been sought. Section 10 is not found in Part I of the Code, but in Part II dealing with "Interpretation and Application." The "alternative submission" does not suggest an additional basis of liability requiring amendment and due notice, since the "ground" of the complaint remains age discrimination. Section 10 of the Code is a provision which a board must bear in mind independently of ss. 38(1)(a) and 40(1) when interpreting the provisions of Part I, whether or not reference was made to that section either in the complaint or in argument.

15Prior to the decision of the Ontario Court of Appeal in Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd. (1982), 1982 CanLII 2280 (ON CA), 38 O.R. (2d) 423, [1982 CanLII 4911 (ON CA), 3 C.H.R.R. D/1071], legislation proscribing discrimination had been commonly held to extend to constructive or indirect discrimination as well, and s. 10 of the present Code was enacted in response to that apparent rejection of such interpretations. As was said of this provision when the legislation received second reading (Bill 7, Second Reading, May 15, 1981, Hansard No. 21, p. 743):

Constructive discrimination is for the first time specifically prohibited, that is, imposing a qualification of some kind which would result indirectly in disqualifying a group of persons who are identified by a prohibited ground of discrimination. There are, of course, exceptions where the qualification is found to be reasonable and bona fide.

16There are a great many decisions of boards of inquiry under the present Code which indicate that the conduct prohibited under Part I includes constructive or indirect discrimination as, "for example, by a neutral employment requirement or qualification that knowingly results in the exclusion of women, and the requirement or qualification is not a reasonable and bona fide one in the circumstances." (Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2174; see also Underwood v. Smith Falls (Town) Commissioners of Police, supra, and Horton v. Niagara Regional Municipality, supra.)

17In overruling the decision of the Ontario Court of Appeal, the Supreme Court of Canada in Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 5509 (FC), [1985] 2 S.C.R. 536, 24 D.L.R. (4th) 321, 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102, appears to indicate that, even apart from s. 10 of the Code, discrimination does not require an actual intent. It may be noted as well that in prohibiting the infringement of the right to equal treatment with respect to accommodation conferred by s. 2(1), s. 8 expressly states that that right may be infringed either by a direct or an indirect act of a respondent. Thus, if a board of inquiry, after hearing and considering the evidence and submissions of the parties, were to conclude that there had been constructive discrimination, there can be no doubt that its authority to find that the complainant's right under the Code had been infringed, and its right to make an order accordingly, is not impaired by the absence of any reference to s. 10 in the complaint.

18As the Commission has the carriage of a complaint heard under the Code, the burden rests upon it to establish on a balance of probabilities at least a prima facie case of discrimination. Thus, a board of inquiry may on that basis be led to infer discrimination in the absence of direct evidence of it. (See, for example, O'Brien v. Ontario Hydro (1981), 1981 CanLII 4316 (ON HRT), 2 C.H.R.R. D/504; Air Canada v. Carson (1984), 1983 CanLII 4690 (CHRT), 5 C.H.R.R. D/1857 (Can. Rev. Trib.).)

Exposition and Analysis of the Facts Relating to Liability

19In seeking to establish that the respondents had unlawfully discriminated against the complainant in respect of accommodation, counsel for the Ontario Human Rights Commission submitted that Mrs. Barnett gave Mrs. Velenosi to understand that she was not going to get the apartment in question because "older" tenants were preferred, and that that assertion is borne out both by the pattern of rentals in the building at the time and the fact that the apartment in question was leased to a couple in their fifties the day after the complainant's rejection.

20Counsel for the respondents asserted that age was not a factor in the assessment of any applications for accommodation in any of the respondents' apartment buildings, any perceived pattern to the contrary at 17 Robinson being merely fortuitous, and that the complainant (who, at 37 years of age, could not be considered particularly young as a prospective tenant) had misinterpreted her conversation with Mrs. Barnett.

21Having regard to these submissions I will turn first to the evidence regarding the complainant's application and her dealings with the respondents. I will then turn to the evidence given with respect to the way in which applications generally were processed by the respondents, including information regarding the ages of tenants in the building at the time.

THE EVIDENCE REGARDING THE COMPLAINANT'S APPLICATION

22On January 25, Mrs. Velenosi saw the following advertisement in the Hamilton Spectator (Tab 5, Exhibit No. 1):

ADMIRED address . . . among elite group of adult residents, lge. 1BR, D.R.area, $395. suit professionals with well established credit. Seventeen Robinson at James 523-8224 522-3357

23Except for Sunday, January 20, that advertisement had appeared in the Spectator each day from January 19 to 26, 1985. Although no advertisement regarding 17 Robinson appeared on Monday, January 28, the following somewhat different advertisement appeared in the Spectator on — but not after — Tuesday, January 29 (Tab 6, Exhibit No. 1):

EXCLUSIVE southwest . . . among elite group of adult residents, large 1 BR, diningroom area. $395. suit professionals with well established credit. Seventeen Robinson at James 523-8224 522-3357

24The evidence regarding such records as were still available was such as to satisfy me that both advertisements were in respect of the same apartment unit that the complainant applied for and failed to get. I find support for that conclusion as well in that there was no suggestion in the evidence that when the complainant eventually went to view the advertised premises she was shown more than one unit.

25Mrs. Velenosi was quite familiar with the Robinson Street apartment building, which was regarded as a rather prestigious address. She called the superintendent, Mr. Stanley, and made an appointment to view the apartment at 6:30 p.m. that same day. However, she testified that when she called back after 6:00 p.m. to tell Mr. Stanley that she would be late her call was taken by Mrs. Toby Barnett. She could not recall the words exchanged in the conversation she said then took place, but her recollection of the gist of it was that she was told that the building was suitable to older couples for whom Mrs. Barnett expressed a preference. Although this led Mrs. Velenosi to infer that she was being discouraged from pursuing the matter, she kept her appointment. She said she was greatly impressed by the apartment and told the superintendent that she wished to rent it, and that Mr. Stanley gave her an application form which she completed and returned to him along with two cheques to cover the first and last months of the lease. The application form, which was a standard form used by landlords generally, included a place for the applicant's age to be inserted. Mrs. Velenosi testified that Mr. Stanley indicated that she stood a good chance and that a decision might be taken by the following Monday.

26In his questioning of Mrs. Velenosi, Mr. Barnett did not suggest that she was mistaken about having had any conversation with Mrs. Barnett that Friday; nor did he seek to elicit from Mrs. Barnett a denial of any such conversation having taken place. Instead, he suggested to Mrs. Velenosi that she did not receive a refusal of accommodation at 17 Robinson during the course of that Friday conversation. Not having contended otherwise, Mrs. Velenosi readily agreed with the suggestion and repeated her assertion that on the occasion of their first conversation Mrs. Barnett had given her to understand that the building was for older people and that she had a couple in their fifties in mind. In the course of questioning Mrs. Velenosi regarding this point Mr. Barnett himself put it to her that his mother might have said to her that "this is a building full of older people; I don't think you will like it"; that Mrs. Barnett "may have said it is suitable for a couple in their fifties"; that, indeed, "there may have been a particular couple in mind"; but that such expressions would not in themselves constitute a refusal to consider Mrs. Velenosi's application. (See Transcript of Evidence for February 22, hereafter referred to as "Vol. I," at pp. 48–49.)

27Under cross-examination by counsel for the Commission Mrs. Barnett, who confirmed that she sometimes answered office calls after business hours when the staff was no longer there, said that she could not recall talking with Mrs. Velenosi that Friday at all. However, after repeated questioning, she admitted that a conversation could have taken place between them at that time, perhaps without her knowing with whom she was talking, and that it was possible that during the course of such a conversation she might have indicated that most of the tenants in the building were older people, retired and very quiet.

28Mrs. Velenosi testified that on the following Monday, since her work might have caused her to miss a call from him, she called at about 6:30 p.m. and was told by Mr. Stanley that his wife was over at "Mrs. Barnett's office" with the application form and that he did not yet know what the decision was. Mrs. Velenosi says she then called Mrs. Barnett. Although they both recall having had that Monday conversation, their versions as to the substance of what was said differ in important respects, and it is to a great extent upon that conversation that the outcome of this complaint depends. Several times during his questioning of them both counsel for the respondents stressed his view that the outcome of the hearing depended on the interpretation to be given to their conversation. It was the submission of counsel for the Commission that "there was no dispute about the fact that Mrs. Velenosi made that call and that she did speak to Mrs. Barnett. We do have a dispute about precisely what was said, and really that is the only dispute we have in this case which is of any significance." (Transcript of Evidence and Argument for February 23, hereafter referred to as "Vol. II," at p. 56.)

29According to Mrs. Velenosi, the substance of what Mrs. Barnett told her during the course of that conversation was as follows (Vol. I, pp. 22–23):

[S]he did not want to rent the apartment to me because [of] consideration to the other tenants in the building, that she preferred an older couple and that, in fact, she had an older couple in mind that were going to be getting back to her in their fifties as to whether or not they did want the apartment, and she would rather pass me by to wait and to hear from this older couple; but that, in fact, she had an apartment available on East Hamilton Mountain [the "Arbour"] that she would rent me . . . I said that building is too far out of the way for what I want and I really want this apartment. I am desperate to move out and the situation is very stressful where I am and if she has not rented it to anyone else, I do not feel why I would be an offensive tenant. The discussion got rather heated and it was left with unfriendly terms as that I would not get the building. That she would wait to get an older couple. That it was her decision and I could pick up my cheques.

30In response to Mr. Barnett's cross-examination in that regard, Mrs. Velenosi remained adamant that Mrs. Barnett had made it clear in their first conversation Monday, January 28, that the complainant was not going to get the apartment. Mr. Barnett then referred to paragraph 9 of the complaint and asked Mrs. Velenosi why she would call back later that evening in order to tell Mrs. Barnett that she was going to pick up her deposit cheque. He suggested to her that, since the cheque would obviously be returned in due course had she been refused, it would have been unnecessary to go to pick it up had her application been rejected. "The only time it makes sense to go and get your cheques is if she didn't refuse you and was still considering you," said Mr. Barnett. "That is the only time that she might use your cheque." To this, Mrs. Velenosi answered: "She told me I was not getting that apartment. I called back in an hour, after I realized that I had two cheques out, that I was coming to get my cheques. . . . I am in business. I don't leave cheques laying around town." (See Vol. I, pp. 52–53.)

31In his questioning of Mrs. Velenosi and, later, of Mrs. Barnett, Mr. Barnett did not seek to establish that a second conversation regarding the cheques had not in fact taken place. Rather, he attached considerable importance to it as constituting cogent support for his submission that in the course of their previous conversation Mrs. Barnett did not advise the complainant that she would not get the apartment. He reasoned that, since Mrs. Velenosi would be troubling herself needlessly by going to pick up cheques that would be returned to her anyway had she in fact been categorically rejected as a prospective tenant of the Robinson apartment, it follows that her call to say she was going to get her cheques indicates that she could not have been refused. I find that reasoning entirely untenable. Not only does it seem perfectly understandable that some people might be reluctant to leave cheques in the hands of persons no longer entitled to them, but it would have been totally senseless and self-defeating for Mrs. Velenosi to have called to say she was picking up her cheques if she had had even the faintest reason to believe or hope that her application still had any chance at all of being accepted. As such a call would be fatal to a pending application, simple logic points to a conclusion diametrically opposed to that of Mr. Barnett. The complainant's uncontroverted evidence is that she called a second time that Monday to tell Mrs. Barnett that she was coming for her cheques. In my opinion, that call would not have been made unless Mrs. Velenosi had been led to conclude that she would not get the apartment at 17 Robinson, and this lends substantial support to the complainant's other allegations.

32Mr. Barnett then turned to what he referred to as the "second telephone conversation" between his mother and Mrs. Velenosi, that conversation having been the first of the January 28 conversations between them. He and the complainant then had the following exchange (Vol. I, at pp. 59–60):

Q. You remember, first of all, the telephone conversation, the second telephone conversation which is the main basis of the complaint. Do you remember saying to Mrs. Barnett, "Nobody wants me" and breaking down crying?

A. It is quite possible with the stress that I was dealing with at home, yes. That was after I was informed that I did not have the apartment . . . Yes, it is possible because after two months after walking the street and being face-to-face with people that have the authority and being continually told that no, you cannot rent, it does tend to get a person depressed. But this was all after I was told that I would not get that apartment.

Q. Now, well, that is the question. I suggest to you is that what happened was the conversation got more and more heated. That she told you that she was waiting before she made a decision and gradually the conversation got more and more heated and you interpreted it as her refusing you and she saw you break down and that fortified her position and made her all the stronger in saying, well, I guess, I don't want you.

33Surely Mr. Barnett, who is an officer in the respondent companies, is completely familiar with the position of the respondents whom he represents. Surely over the course of the four years since the complaint was issued he would have discussed these matters with his mother, who is also a respondent. Accordingly, one might well expect his questioning of the complainant to reflect his understanding of the respondents' position. Based on that questioning, it would seem to have been his understanding that the conversation did indeed become increasingly heated and emotional as it progressed, leading him to suggest not only that Mrs. Barnett might have concluded on the basis of the complainant's comportment that she did not want Mrs. Velenosi in that building, but that Mrs. Barnett might have so indicated. He sought to get the complainant to concur with that suggestion. His very line of questioning appears to confirm a material aspect of the complainant's account of this crucial conversation.

34At this point it is useful to note that it was Mr. Barnett who answered the Commission's letter of April 17, 1985, under cover of which the respondents were asked to reply to a questionnaire. Moreover, it was he who attended the "Fact Finding Conference" on June 7, 1985, which was conducted by Mr. Selwyn McSween, a human rights officer with the Commission who was called to give evidence in reply to matters raised in the course of Mr. Barnett's testimony. While cross-examining Mr. McSween, Mr. Barnett had the witness read into the record several parts of the notes taken at that meeting (Exhibit No. 4). Mr. McSween had explained the manner in which he could identify those parts of his notes which conveyed in his own words the gist of what was said and those which were direct quotations taken down verbatim at the time such statements were made. Each page of these notes were signed by Mr. Barnett, indicating that he had read them. He did not challenge their accuracy. In one passage of these notes Mr. Barnett is reported to have said: "I imagine that what happened was that the conversation got heated." (Vol. II, at p. 36.)

35Mr. Barnett declined to complete the questionnaire itself, choosing instead to answer it by way of a letter dated May 14, 1985 (Exhibit No. 2). In the course of that letter Mr. Barnett stated that, when Mrs. Velenosi called the office on Monday, January 28:

. . . she was upset that "nobody wanted me" and cried on the telephone. She alternatively demanded her deposit returned and said she would lay charges against us.

We never refused her. We might have chosen her had she been the best applicant in our judgement. We are concerned only with finding responsible appreciative tenants quite apart from marital status or national origin (Velenosi does not sound particularly Italian to me). Based on her conduct, however, it seems likely that she would be unstable and uncooperative and we would not accept her now.

36Mr. Barnett's suggestion that the conversation between the complainant and his mother became heated, which was clearly implied by his letter of May 14, was repeated by him at the fact-finding conference and again in his questioning of Mrs. Velenosi. However, that suggestion appears to be inconsistent with the evidence of Mrs. Barnett who maintained that there had been no argument between her and Mrs. Velenosi. (Vol. I, p. 122.)

37Mrs. Velenosi's "demand" for the "return" of her deposit is alleged in the May 14 letter to have been made during the course of the conversation in which she was "upset" and "crying," which would have to have been the first of the Monday calls. Based on his view that one would only ask for the return of one's cheque if one's application were still in the running, this "demand" would not be inconsistent with Mr. Barnett's allegation that she was not refused the apartment during the course of that conversation. Surely, however, he would not maintain that her threat to lay charges was similarly explainable only on the basis that she had not yet been refused! If Mrs. Velenosi made such threats during the course of that very conversation it would obviously have had to have been because she had been refused the accommodation she sought. If she had not made such threats, why did Mr. Barnett allege on behalf of the respondents that she had?

38Before leaving Mr. Barnett's letter of May 14, it should be noted that that reply to the complaint makes no reference to age, but only to marital status and "national origin." At that time the unamended complaint still alleged discrimination on the basis of marital status and ancestry, as well as on the basis of age. Counsel for the Commission suggested that this was an intentional omission by one unable to deny that there had been discrimination on the basis of age, and that it virtually amounted to an admission (Vol. I, at pp. 110–111):

Ms. Molloy: Q. You wrote a letter knowing that there is an allegation of age. You made no reference to age. You then attend a fact-finding conference in which you admit that you have a preference for older couples as tenants in this building. Now, when after that did you decide that age is not one of the preferred characteristics?

A. Well, first of all, with respect to the letter, I think it was my impression before attending that fact-finding conference and when I wrote that letter that the claim about age was frivolous and vexatious. It was my view, and it still is, that this whole complaint is a joke and I did not take it seriously. I did not take the claim for age seriously because thirty-seven is not young and we do not have a — the only — I am guessing that I responded in the letter to the question of marital status and national origin because those are the kind of things that you hear about in these human rights things and I thought that was the thrust of the complaint. When I got to the fact-finding, the inquiry, it seemed that the brunt of her complaint was the age. I mean I don't take any of this seriously because I know it isn't true.

39Although the complaint sets out eleven numbered paragraphs, no mention is made of marital status or ancestry until it is disclosed in the last paragraph that the complainant is separated from her husband and bears a surname of Italian origin. No other "particulars" of the alleged discrimination on such grounds is provided. In contrast, paragraphs 4 and 8 clearly contain particulars as to the complaint of age discrimination.

40While it is difficult to understand how counsel for the respondents could fail to see that the allegation of age discrimination was seriously intended (if, indeed, not clearly the principal charge), I think it would be going too far to read into the omission to refer to it in the May 14 letter an admission that such discrimination had occurred. The letter itself appears to indicate that Mr. Barnett viewed the formal complaint under the human rights Code of this province with some disdain, lending credence to his testimony that he regarded "this whole complaint as a joke" and not to be taken seriously. In that context he might well have seen the matter as a minor annoyance not meriting the tiresome completion of a questionnaire when a cursory letter could be sent instead. It does not seem improbable that in dashing off such a letter he might have focused on what he regarded as the more notorious kinds of discrimination to the exclusion of that involving age.

41I come now to the evidence given by Mrs. Barnett during her examination-in-chief concerning the first conversation between her and Mrs. Velenosi on Monday, January 28. Her testimony in this regard begins with her reaction to the assertion that she offered Mrs. Velenosi an apartment in "The Arbour" instead of 17 Robinson (Vol. I, p. 122):

Q. [Mrs. Velenosi] said that you told her you wouldn't take her at 17 Robinson but you would take her at The Arbour.

A. I didn't tell her we would take her at The Arbour. I said we have a new building at Upper Kennilworth. If you wish to go up and look at the building and make an application, you may get a beautiful apartment because it was a brand new building. How can I say that you will have this apartment at Arbour Place and her credit may not be any good. I couldn't tell her that I will take her. . . .

42I pause here to point out an apparent inconsistency in Mrs. Barnett's evidence. Except in relation to credibility, whether Mrs. Barnett offered her an apartment at "The Arbour," or simply invited her to apply there, is of no particular significance to the complainant's case. However, it is clear that Mrs. Barnett must have raised the possibility of the complainant's obtaining accommodation at "The Arbour," and it seems highly improbable that any reference to alternative accommodation would have been made except in the context of a refusal at 17 Robinson. And in that context it would not impair Mrs. Velenosi's credibility even if she were proved wrong in her belief that she had been offered accommodation at "The Arbour," rather than just the opportunity to apply there.

43There is one final question to which this particular evidence gives rise. Had the complainant's comportment over the telephone been such as to have convinced Mrs. Barnett of her unsuitability as a tenant (as Mr. Barnett was earlier observed to have suggested), would that not be reason enough to exclude her from all of their many apartment buildings, rather than just the one at 17 Robinson that was "suitable to older tenants"? Why, then, the suggestion that she apply at "The Arbour"?

44Following a brief digression, Mr. Barnett returned to this vital conversation, and Mrs. Barnett replied as follows to various questions he then put to her (Vol. I, at pp. 125–128):

Q. What about the idea that you refused Mrs. Velenosi. She said you turned her down. She said you said you are not going to rent this apartment and you want an older couple.

A. That is not true. I didn't know her. She was very hysterical. She must have had a bad day. She was crying to me, "Nobody wants me. Nobody wants me." She was in bad shape. I said, "Why would nobody want you?" She couldn't talk. She was crying. So I couldn't really — we didn't have an argument. I had no reason to have an argument with her. I didn't see her application or to be mad at her for anything. I had no reason at all. . . .

Q. I want to be fair about this conversation. This whole case is based on you refusing her in that conversation. You said you refused her. You told her you are not going to rent that apartment to her. Is that right?

A. I couldn't very well say that because I didn't see the application. The minute she said to me I want to come into 17, I said, "Who are you?" and she tells me the name. She said, "I left cheques." I said, "I didn't see your application." I didn't see the application, but she started crying. She was hysterical that "Nobody wants me. Nobody wants me." So I tried to cool her down. I said, "Why does nobody want you?" But she was crying and wasn't able to talk.

Q. What about — did she call you and say I am coming to pick up the cheques?

A. No, she didn't say.

Q. And when you finished your conversation with her —

A. She was crying and she hung up. You know, it was a very short conversation. It was late. I don't know. She said six o'clock or seven.

45The importance of Mrs. Barnett's assertion that she had not seen Mrs. Velenosi's application is that it suggests the absence of any motive for refusing Mrs. Velenosi. As she put it herself, "I couldn't very well say that [I refused her] because I didn't have the application." Of course, this does not address the possibility that something was said during the conversation itself that might prompt a refusal. Counsel for the Commission neglected to question Mrs. Velenosi regarding this aspect of the matter. However, during her cross-examination of Mr. Barnett, counsel for the Commission asked Mr. Barnett whether he disputed having made the following statement attributed to him in the entry from the notes taken at the fact-finding conference (see Vol. I, p. 107 and Exhibit No. 4, p. 2):

I imagine that is reasonably correct. But it has to be taken in context. I don't — the whole conversation [went that way]. But there is more to it than that. The building is suited to older couples. [Older couples reside there and are preferable.] The character of the building is old retired couples, and that's the way we like to keep it. Quiet.

46All but the bracketed words were sworn to be a direct quotation of what was said, and Mr. Barnett did not dispute its accuracy. That entry was read into the record in relation to the attitude of the respondents regarding the kind of tenants they wanted in 17 Robinson. However, in light of Mrs. Barnett's denial that she had ever seen Mrs. Velenosi's application, counsel for the Commission returned to this entry when questioning Mr. McSween in order to counter the implication that, not having seen the application, Mrs. Barnett could not have had any reason to refuse Mrs. Velenosi. (See Vol. II, pp. 28 ff.) The entry just quoted begins this way: "I imagine that is reasonably correct," the word "that" referring to the immediately preceding note of what Mrs. Velenosi had said. The statements attributed to both Mrs. Velenosi and Mr. Barnett were made in relation to paragraph 4 of the complaint wherein Mrs. Velenosi alleges that "On speaking with Mrs. Barnett, she was told she wanted an older couple to rent the apartment." The statement Mrs. Velenosi was quoted by Mr. McSween to have made which Mrs. Velenosi imagined to have been reasonably correct is the following (Exhibit No. 4, p. 1):

She [i.e., Mrs. Barnett] says, "You don't sound like you're very old. How old are you?" I told her I was thirty-eight. She said "The building is suited to older people, and we are looking for an older couple."

47While that is not Mrs. Velenosi's sworn testimony and cannot be taken as going to prove the truth of what she said, it is Mr. McSween's sworn evidence that she said it and that Mr. Barnett said that he imagined that it was reasonably correct.

48I now turn to the cross-examination of Mrs. Barnett regarding this conversation (Vol. I, pp. 165–169):

Q. Now, let's talk about this second discussion that you had with Mrs. Velenosi, or the one that you remember. I am talking about that one. You said that Mrs. Velenosi spoke to you. She was immediately upset as soon as she called you. Is that right?

A. She wanted to know why she wasn't accepted. I say, "Well, I didn't see your — who are you?" and she gave me the name. She right away starts crying. "Nobody wants me. Nobody wants me." She was crying and in bad shape, hysterical. . . .

Q. Did you ever look at her application?

A. No, I never remembered seeing it.

Q. It is clear that she made the application, isn't it? You don't deny that she made the application?

A. Well, apparently she did after we got this complaint. Apparently after she said she was coming in to pick up the cheques, it must have given it back [sic] to Mrs. Stanley. So that is why it wasn't in our office.

Q. You had this discussion with Mrs. Velenosi in which you described her as being hysterical?

A. Yes.

Q. And you said to her that she could maybe file an application for another building that you had?

A. Yes, I said we have a new building on the mountain. I didn't say she could have it. I said you can go up and make an application.

Q. She told you on the phone that she had applied for 17 Robinson, did she not?

A. That is why she was crying why she wasn't accepted. . . .

Q. After you had this conversation with Mrs. Velenosi, weren't you curious to see her application form?

A. No, it was late at night. I didn't want to see the application or anything. I was tired. . . .

Q. During this conversation with Mrs. Velenosi, is it possible that you mentioned to her that this was an older kind of building?

A. No, she didn't give me a chance to talk because she was crying. She hung up when she was crying.

Q. Why would she be crying if you hadn't told her she couldn't have the building?

A. I didn't tell her. I didn't know about her. I didn't even have the application on my hand. How could I tell her she is not accepted. . . .

49When questioned by Mr. Barnett about it, Mrs. Velenosi had no clear recollection of having cried during the course of her conversation with Mrs. Barnett, but she readily admitted that she might have done so. However, she already testified that she was upset by having been refused the apartment and she maintained that any crying on her part would have been as a reaction to that decision. That position seems far more probable than the suggestion that Mrs. Velenosi, an obviously strong-willed business woman, would commence a conversation with a prospective landlady regarding an apartment she had no reason to believe she was being denied by bursting into tears and repeating hysterically that "Nobody wants me. Nobody wants me."

50As indicated earlier, I have concluded that there was only one unit then available at 17 Robinson fitting the description of the apartment advertised from the 19th to the 26th of January, and again on the 29th of that month. According to the examination of the respondents' records undertaken by Mr. Fukuzawa, a human rights officer employed by the Commission, that apartment was rented to a Mr. and Mrs. Smit, a couple in their late fifties. In the course of cross-examination Mr. Fukuzawa referred to a notation on a document relating to that apartment which he said led him to assume that their tenancy began on January 30, 1985. Mr. Barnett asked him to point out where that notation appeared, and when his attention was drawn to it Mr. Barnett did not challenge that assumption, but instead abruptly concluded his cross-examination with the words: "No question." (Vol. II, p. 26.)

51As Mrs. Velenosi had maintained that Mrs. Barnett said she was waiting to hear from a couple in their fifties regarding the apartment, the fact that such a couple got that apartment two days later would appear to corroborate the complainant's version of the conversation in a material aspect.

52It was also argued by counsel for the Commission that the rental of the apartment within a day or two of their conversation demonstrates an inconsistency between Mrs. Barnett's assertion that she had not refused to rent the apartment to the complainant and her assertion that she at no time saw the complainant's application. The respondents' evidence was that their practice was to accumulate several applications for an apartment from which the "best" would be selected. Whether there were other applications besides those of Mrs. Velenosi and the Smits when the latter were selected for the apartment on the 29th or 30th of January was not disclosed. (There was no evidence to support counsel's insinuation (at p. 58 of Vol. II) that the January 29 advertisement had been published for some obscure and subtle purpose relating to the alleged refusal to rent to Mrs. Velenosi. It would seem that the earlier advertisement had simply failed to generate a sufficient response.) Thus, if it had not been refused already, presumably Mrs. Velenosi's application would have been considered along with any others that had been received when the respondents opted for the Smits. How, then, could Mrs. Barnett not have seen the complainant's application? It is clearly possible for one whose application has already been examined to be informed over the telephone that she or he has been rejected. However, in the context of a system normally involving consideration of all applications on hand, it seems likely that it is only if the application had been rejected sight unseen for reasons gleaned in some other way that a landlady (lacking in curiosity) would never see that application. Thus, if it is true that Mrs. Barnett never saw Mrs. Velenosi's application, this would suggest that she had discovered something she found undesirable about Mrs. Velenosi during their phone conversations — such as her comportment — as Mr. Barnett suggested at one point, or her age, as the complainant suggests. On the other hand, if that application was considered, Mrs. Barnett's version of their conversation would be for that reason suspect.

53The cumulative effect of the evidence I have reviewed leads me to prefer the complainant's version of the conversations that took place between her and the respondent, Mrs. Barnett. Thus, I find on a balance of probabilities that Mrs. Barnett must have been aware of Mrs. Velenosi's age when they spoke, that she said that she preferred older tenants, and that she indicated that the complainant could not rent the apartment at 17 Robinson. However, as there was no evidence that Mrs. Barnett expressly assigned the complainant's age as a reason for the refusal, I would be somewhat hesitant to infer that the stated preference was the (or a) proximate cause of the decision without having regard to the rest of the evidence. Thus, I turn now to the remaining evidence that must be examined.

THE EVIDENCE REGARDING THE RESPONDENTS' HANDLING OF APPLICATIONS GENERALLY

54As an officer of the respondent companies and a frequent participant in the process, Mr. Barnett testified as to the practices employed in dealing with applications for accommodation at 17 Robinson. Since it is substantially similar, Mrs. Barnett's evidence in that respect will not be reviewed.

55The tenants at 17 Robinson were variously described by the respondents as being "aristocratic," "high class" and "elite" people, whose home this "prestigious" building was. Assuring the continued comfort of their tenants in the atmosphere of quiet gentility they had come to expect was of prime concern to the respondents. Mr. Barnett indicated that it was not uncommon for one tenant, upon learning of the pending departure of another, to recommend some worthy peer whose acceptance would obviate the need to advertise and contribute to the preservation of the character of the building as an abode of the venerable. Such recommendations would seem to have been accepted rather routinely. (See Vol. I, p. 92.)

56In the absence of such internal recommendations applications for vacancies would be obtained through advertising. As much information as possible would be obtained regarding these applicants, and references and credit ratings carefully checked. The "best" applicant would then be selected. Such decisions were usually taken by Mrs. Toby Barnett. Since applicants are normally seen only by him or her, the superintendent's opinion of them is elicited. Indeed, it was indicated that whether the tenant is likely to be difficult or easy for the superintendent to get along with is one of the most important factors. Mr. Barnett described the practice this way (Vol. I, p. 90–92):

[O]ur job is to try and figure out which tenants are going to be the most agreeable. We try and get whatever information we can of the way the person looks, how polite he is, whether he is dressed well, his income history, where he lives, has he just sold his home, how long has he lived there, his previous landlord. Whatever information we possibly can, that is what we try to get. What happens is that tenants come to the building, look at the apartment and if they are interested, they make an application. . . . Now, one of the most important things, if not the most important thing we ask the superintendent whether she likes this applicant. Is this a person that she wants to have living in her building? Does she want this person as a neighbour? It is a purely subjective thing and it is very important. We don't see the applicant. Only the superintendent can tell us what the applicant looks like. But based on whatever information we have, we choose what seems to be the best, what seems to be the tenant who is going to be the most agreeable. It is very skimpy information but we do the best we can. . . . By the way, there is no policy whatever relating to age. It has absolutely nothing to do with it. It has absolutely — marital status or ancestry has absolutely nothing to do with it. I make decisions myself all the time. I am familiar with the procedure. I discuss tenants with my mother who decides most of the time. I have discussed them with superintendents and with our office manager. Age and these other factors, these prohibited areas of discrimination do not come into play. . . .

57Although Mr. Barnett had declared that age was not a factor in determining the selection of the tenants at 17 Robinson, his response to certain questions put to him in cross-examination seems to some extent at least to suggest otherwise. As noted earlier (p. 19, supra), during the course of the fact-finding conferences conducted by Mr. McSween, Mr. Barnett made the following statement:

I imagine that is reasonably correct. But it has to be taken in context. I don't — the whole conversation [went that way]. But there is more to it than that. The building is suited to older couples. [Older couples reside there and are preferable.] The character of the building is old retired couples, and that's the way we like to keep it. Quiet.

58After this statement was read into the record and admitted by Mr. Barnett to be accurate, the following exchange took place between him and counsel for the Commission (beginning at p. 107, Vol. I):

Q. Now, Mr. Barnett, you have made a statement in front of witnesses, you signed that statement indicating that the building is preferable to you as a landlord to have older people in that building. Isn't that right?

A. No, that is not right.

Q. Well, that is your words. "The character of the building is old, retired couples and that is the way we would like to keep it."

A. The context of the situation is that it is a building that has older folks in it and it is important to us that they are happy. That is the context of the thing. We are perfectly prepared to take younger people and we do take younger people.

Q. You prefer older people, don't you, Mr. Barnett?

A. No, I prefer tenants that fit in and are happy and we have taken plenty of younger people. . . . I think the character of the building is a quiet place with retired people in it. There are plenty of young people in it but it still has that character. It still has the character of being a quiet place with retired aristocratic people and that is the atmosphere that we want to keep. Now, young people can fit into that atmosphere and do.

Q. Will you agree with me that a homogeneous group is more likely to get along?

A. I don't know about that. That is, you know, kind of a profound sociological statement that I wouldn't want to affirm or deny.

59Before continuing with Mr. Barnett's evidence as to whether age was a factor, it may be noted that the preceding testimony appears to indicate that the building is occupied primarily by "older" tenants, and that it has a certain cachet as a haven for "retired aristocratic" people which the landlords are determined to preserve by any means. That young tenants are accepted into the building provided they can fit into that atmosphere would suggest their endowment with certain other attributes outweighing the disadvantage of youth. In this regard it is to be noted that the Commission had submitted not that age was the only criterion applied in the selection of the tenants of this building, but that it was a factor that might be outweighed by other considerations in particular instances. That submission assumed a degree of cogency in light of Mrs. Toby Barnett's examples of young tenants who clearly fitted into the elitist atmosphere which the respondents sought to preserve. One of them was a young woman doctor interning at a nearby hospital who required a small apartment for a year or two. Another was the daughter of the then president of the University of Toronto who was attending McMaster University. (See Vol. I, pp. 124–125.) In any case, the cross-examination of Mr. Barnett on the age issue continued as follows (at p. 110):

Q. You wrote a letter knowing that there is an allegation of age. You made no reference to age. You then attend a fact-finding conference in which you admit that you have a preference for older couples as tenants in this building. Now, when after that did you decide that age is not one of your preferred characteristics?

A. Well . . . I think it was my impression when I wrote the letter that the claim about age was frivolous and vexatious. . . . When I got to the fact-finding, the inquiry, it seemed that the brunt of her complaint was age. I mean I don't take any of this seriously because I know it isn't true.

Q. But Mr. Barnett, you yourself at the fact-finding conference said it was true.

A. Right, now when [Mr. McSween] started asking me about the matter of age, I gave him the answer that I did. I am entitled to have whatever preference I want. The question is whether or not we discriminate and I am telling you plainly, we don't.

Q. You just said that you are entitled to whatever preferences you want — Now, is one of those preferences age?

A. I am answering you in this way. We have an intention so far as we can to maintain the atmosphere in that building. It is a very successful, very prestigious building. We have minimal trouble with the tenants there. The tenants that are there — the atmosphere is a quiet, retired type of feeling. There are plenty of young people there but we want the atmosphere to stay the same. And, however, I can achieve that, I will be happy to do it. . . .

Q. I am not suggesting, Mr. Barnett, that you don't always come down with some factors weighing more heavily than age. What I am suggesting to you is that one of the factors you take into account is age. Now, sometimes you take the younger tenant. That is clear from the documents we have got. Other times you don't. But one of the things you think about is their age. Is that right?

A. We try to think about everything.

Q. Including their age?

A. Everything.

Q. Including their age?

A. Everything.

Q. Is that a yes?

A. Everything. I try to take everything into account but age is not a factor one way or the other in terms of [whether] this person is going to be agreeable. . . .

60In response to her son's questions, Mrs. Barnett also indicated that vacancies at the Robinson Street location were frequently filled by persons recommended by well-established tenants. While in other cases applications would be sought from which the "best" would be selected, even then it would seem that she routinely consulted tenants with preferences towards older people. It is to be noted as well that Mrs. Barnett's testimony under cross-examination revealed a sufficient resentment of the law's constraints in the selection of tenants as to suggest an unacceptable predisposition towards (or away from) certain kinds of tenants, at least in so far as this "prestige" apartment building is concerned.

61At the time of Mrs. Velenosi's application the respondents had in circulation a business card (Exhibit No. 1, Tab 8) which read "SEVENTEEN ROBINSON (at James) — The ideal downtown apartment home — The entire building is reserved for select adults." They had also typed into the standard lease form they used the warning that "The applicant understands and agrees that . . . the building is "ALL ADULT" and no baby sitting is allowed." (Exhibit No. 1, Tab 6; emphasis added.) Not only were children thus excluded as tenants, but adults who might have occasion to have children stay with them for periods of time were intended to be discouraged by this caveat. An effect of that eligibility requirement might well be an increased incidence of tenants who are sufficiently "older" as to be unlikely to be burdened with such obligations.

62The relevant examination-in-chief of Mrs. Barnett (beginning at p. 124 of Vol. I) indicated that:

. . . We have very beautiful people in the building and we would like to retain the atmosphere. They would be very annoyed to see somebody move in that doesn't belong in the building and we try to protect them. It is their home. . . . I would pick the best people who blend into the social — even the social standing of the people that live there. We have very prestigious people in the penthouse with a lot of money in their apartment. Mr. Eager lives there twenty-seven years. He was the president of Burlington Steel. We had Mrs. Baker sold a beautiful home on Mayfair Crescent came in — the first lady there — and they had a whole page in the Spectator about her. She was very concerned who comes in next door to her or to meet somebody in the elevator that she can be nice with. . . . The age question, well, people are ninety-three there and people are eighty-seven. I think the youngest may be seventy. I mean if you take as a group. The people come in there not to move except the smaller apartments. They come in to stay.

63In the course of cross-examination, Mrs. Barnett's testimony relative to these matters was as follows (Vol. I, pp. 133 ff.):

Q. [Your card] says the entire building is reserved for select adults. . . . In 1985 you weren't taking any children in the building?

A. I don't know. When did the rule come in that you can't advertise adults only?

Q. December of '86.

A. Eighty-six. So I was still free to do what I want.

Q. As far as children were concerned.

A. Whatever.

Q. Let's talk again about the "select" adults. What do you mean by —

A. It is. We select them. . . . Mr. Eager [in the penthouse] helped me select them. He wanted to see who comes in next door to him. . . .

Q. Do you think you are in the best position to determine who would fit best in your apartment building?

A. No, that is why I told the people in the building that live all their life in Hamilton, they know the people and I will phone Mr. Burns, what do you think of this lady? She wants to come in. He will say, oh, I know her. We go to the officers' club with her, them or whatever. . . . I would usually phone up somebody in the building. Do you know this lady that lives so and so? Do you know her? I want to have a recommendation from people that live in the building. It is their home. I owe it to them to keep a nice building because you go in other buildings and it is a shambles and because there are absentee landlords. We are the original landlord that originally built the building and did not sell it not to be harassed by people like you. That is why they sold it. . . . We didn't sell any and we keep going but it is a very difficult job when you don't have enough power to do what we want to do.

Q. You don't like being told who you can rent to, do you? . . . What do you mean [in your newspaper advertisement] by "elite"?

A. High-class people. They are the top people in Hamilton.

Q. You told me you hardly have any vacancies in this building. . . . Why do you have an ad that you run all the time then?

A. We don't run all the time. We very seldom run. When we have a vacancy and people bring me in — the people in the building bring me in their neighbours and whatever and several of the tenants will bring in their buddies. I have to advertise to show them that I don't discriminate against her friends that I will get more applications. We seldom advertise. . . .

64In the course of investigating the complaint the Commission examined the respondents' records to ascertain the ages of the tenants living at 17 Robinson. A document was prepared (Exhibit No. 1, Tab 7) showing the names and the apartment numbers of the tenants and, where available, their ages and the dates they entered into occupancy. Ages were available with respect to only 54 of the 123 apartments, and the tenants of 12 of these were under 40 years of age. It was established that apartments ending with either the number "3" or the number "7" were smaller units, lacking a dining area and apparently not suitable to the well-established people to whom the building avowedly catered. Counsel for the Commission made much of the fact that seven of the younger tenants were located in these smaller units, and she pointed out that all but one of the others had entered the building prior to the Stanleys' tenure as superintendents. The significance of this last point was tied to the evidence of Mrs. Stanley which we have yet to come to.

65I am strongly inclined to agree with Mr. Barnett that any inferences regarding age discrimination drawn from information involving only 44 percent of the tenants must be regarded as rather dubious, and my decision in this matter is certainly not contingent on this particular evidence. However, by the same token, neither can this sparse information serve to support Mr. Barnett's submission (at p. 90, Vol. II) that "the proof is in the pudding: there are plenty of young people" at 17 Robinson. The records to which the Commission had access were admittedly incomplete; but they were the respondents' records, and they showed that, of the 123 units that were occupied, only 12 undoubtedly had tenants under 40 years of age. Although the overall burden of proving the alleged discrimination rests with the Commission, its discharge does not require proof that no more than some arbitrary percentage of apartments were rented to "younger" tenants. On the other hand, as Mr. Barnett's argument suggests, proof that a substantial number of apartments were occupied by younger tenants would lend strong support to the respondents' position. With respect to those units for which there was no age information, clearly there can be no presumption in favour of either party as to the number of them (if any) that were occupied by younger tenants. It is not even appropriate to assume that the percentage of young people in the units for which information was lacking was the same as in the others. Curiously, however, if there are apartments with numbers ending with a "3" and a "7" on all fourteen floors beneath the penthouse level, that assumption would result in a total of 27 tenants under 40, which would be one fewer than the number of small apartments.

66Mrs. Stanley was called to testify as to the situation that prevailed when she and her husband were the superintendents of 17 Robinson. Her evidence was to the effect that Mrs. Barnett appeared to prefer having older, wealthy people in the building, and that the younger people who came in were in the small apartments ending with the number "3" or "7." With only one exception that she could recall, and which she said was unusual, the other apartments went to older, more "mature" tenants; and she meant by "mature," persons over 40 years of age.

67The evidence of the office manager of the respondent Dominion Management, Mary Miller, must be contrasted with that of Mrs. Stanley. Ms. Miller's work in 1985 involved management duties with respect to some twelve or thirteen buildings, and it is to be noted that she was not questioned by Mr. Barnett about practices at 17 Robinson specifically, but about the respondents' practices generally. She testified that she had not discussed the case with Mr. Barnett other than "that I would come here today and just say what I do at work," and that all she knew was that "it was to do with a lady that applied for an apartment four years ago, or five years ago — I'm not sure — and didn't receive the apartment." (See Evidence Vol. II, p. 13.) In that context Ms. Miller testified that age was not a factor in the selection of tenants and that there was no policy of allocating smaller apartments to younger people and of reserving larger ones for older tenants. In the course of cross-examination specific reference was made to 17 Robinson, and Ms. Miller was asked whether she agreed with Mr. Barnett's statement at the fact-finding conference that "older couples are preferable . . . the building is mostly retired couples, and that is the way we like to keep it." She said she did not think so "because we have younger ones than 40 in there." (See evidence Vol. II, p. 16.) However, Ms. Miller acknowledged that it was the Barnetts who made the decisions.

68Although I believe that both Ms. Miller and Mrs. Stanley were truthful, in light of the rest of the evidence I did not find the testimony of either of these independent witnesses to be compelling. Ms. Miller's evidence was very general, and it was inconsistent with the evidence of Mrs. Stanley who had worked exclusively at 17 Robinson during the period in question.

69I have already concluded with respect to the crucial conversation between them, that Mrs. Barnett, who knew Mrs. Velenosi's age, disclosed her preference for older people and indicated that the complainant would not get the apartment. I am persuaded by the remaining evidence, which I have reviewed rather exhaustively, that that preference was one of the considerations leading to that decision. It was clearly not the only factor and, in view of the number of younger tenants accepted, it may not even have been the most important factor. But I find that it was "present in the mind" of Mrs. Barnett when she made her decision, and that it played a role in that regard, however minor.

70Thus, on the balance of probabilities, and having regard to the applicable law reviewed earlier, I find that there was direct discrimination on the basis of age and that it was a proximate cause of Mrs. Velenosi's being refused accommodation.

71Even if the specific decision to refuse Mrs. Velenosi was not found to have been based on the prohibited ground of age, the factors that plainly entered into the disposition of applications to 17 Robinson appear calculated to result in the exclusion from such accommodation of persons who happen to be within a class that can be identified by reference to that prohibited ground.

Remedies

72Where a board finds that the complainant's right under the Code has been infringed it is empowered by s. 40(1)(a) of that Act to make an order directing the party who has infringed that right to do that which the board thinks necessary to achieve compliance with the Act in respect both of the complaint and of future practices. Counsel for the Commission requested the making of an order pursuant to this provision directing the respondents

(1) to post prominently in each one of their apartment buildings notices prepared by the Commission (referred to as "Code cards") for the purpose of communicating information regarding rights and duties under the Code;

(2) to consult with the Commission as to the making of appropriate changes in the application form used in respect of their apartments; and

(3) to provide the Commission over a period of three years with copies of all applications, whether successful or not, to any of their apartments.

73Where a breach of s. 2(1) of the Code has been found it is usual for boards of inquiry to order the posting of "Code cards," and to make some provision for the monitoring of future practices, and I have decided to accede to these requests, but in part only. The evidence does not suggest that the respondents harbour some innate prejudice towards "younger people" whereby they would exclude them from all of their apartment buildings if possible. The discrimination which led to the infringement of the complainant's right was not some all-pervasive preference for "older people," but a preferential consideration specifically related to one location only, and for reasons that were not even suggested to have been applicable to any other apartment operated by the respondents. Consequently, my order will be confined to the apartment building known as 17 Robinson.

74With respect to redressing the harm caused the complainant by the infringement of her right, s. 40(1)(b) of the Code empowers the board to direct the payment of 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."

75The infringement of Mrs. Velenosi's right obviously led to the loss of some earnings through time spent in pursuing her complaint, and it involves expenses incurred in prolonging her search for accommodation. However, there was no evidence as to the extent of such special damages for which, in any event, no claim was made by either her, or on her behalf. Indeed, in the course of cross-examination the complainant indicated that she was not seeking monetary compensation, but simply to put a stop to the practice of which she complained. (See Vol. I, p. 62.)

76Although not representing Mrs. Velenosi, counsel for the Commission suggested that an award of $10,000 as general damages should be made to compensate the complainant for her mental anguish. It was urged that that award be in an amount sufficient to deter this kind of conduct; that it not be so low as to amount to a licence fee to conduct business in the manner complained of.

77The awarding of general damages pursuant to s. 40(1)(b) does not require evidence of some physical manifestation of mental anguish. It has been repeatedly held that such things as "insult or injury to dignity and self-respect; loss of the right to freedom from discrimination; pain and suffering; emotional upset" are sufficient bases upon which to make such an award. (Reese v. London Realty and Rentals Ltd., an unreported decision of Dr. D. J. Baum, January 29, 1986 [since reported at 1986 CanLII 6516 (ON HRT), 7 C.H.R.R. D/3587]. And see also Underwood, supra, at para. 25465, and cases cited therein.)

78It is clear that Mrs. Velenosi suffered emotional upset in consequence of the discriminatory refusal of accommodation. She did not deny the allegation that she cried during the telephone conversation with Mrs. Barnett; and that (as I have found) was as a result of that refusal. Her testimony indicates that she suffered stress, emotional upset and inconvenience by having to remain in the same home with her estranged husband until she found suitable accommodation over two months later. Thus, I have no hesitation in finding that there was "mental anguish" within the accepted scope of this provision of the Code. Moreover, the infringement having been direct and not merely constructive, I find that it was engaged in wilfully or recklessly.

79In support of her submission that a substantial award should be made in this case, counsel for the Commission referred to the Reese case, supra, to the unreported decision of Professor Adell in Willis v. David Anthony Phillips Properties, dated February 18, 1987 [since reported at 1987 CanLII 8546 (ON HRT), 8 C.H.R.R. D/3847], and to my own decision in Underwood, supra. Although these cases are helpful in some respects, I do not find them entirely apposite.

80In Reese, supra, which concerned racial discrimination in respect of accommodation, Dr. Baum awarded general damages in the amount of $2,500. In that case the complainant was found to have suffered "deep personal hurt" and a "severe depression," and even though the act of discrimination occurred four years earlier it was one which at the time of the hearing "weighed heavily and continued to hurt." Such is not the case before me. Mrs. Velenosi was outraged by the respondent's act of discrimination and, while there was some emotional upset occasioned by it, both her testimony and her bearing were such as to lead me to conclude that the "mental anguish" she suffered as a result was minimal. Even allowing for the inflation factor over three years, I am of the view that an award of $2,500 would be greatly excessive in this case.

81The Willis case, supra, involved discrimination on the basis of receipt of public assistance. As a result of this discrimination the complainant and her two small children suffered disruption and grief. The children, "who were only one and two 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." After making the following general statement regarding the purpose of awards of general damage, Professor Adell (in February of 1987) awarded the complainant $1,000 [at D/3855, para. 30460]:

Awards 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 . . . 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.

82In the Underwood case, supra, I expressed the view that the amount of general damages to be awarded under s. 40(1)(b) should not be based upon comparing the mental anguish of the complainant with the "most horrific" circumstances imaginable for which alone the limit of $10,000 is available. And, while it has been borne out "that the initial reticence of boards of inquiry to make more than the most minimal awards [has given] way to the view that damages ought to be more substantial," there is no doubt that present awards must maintain a reasonable relationship to previous awards.

83The Underwood case, which concerned discrimination in employment on the basis of age, resulted in considerable distress and embarrassment to the complainant. His denial of consideration for employment as a police officer was made to appear to have been based on other factors that could lead persons in the small community where he was known to assume hurtful things about him. The respondent persisted in its denial of discrimination over a considerable period of time, and the circumstances were such as to warrant the inclusion of a substantial element of punitive damages in the award of $3,000 that was ordered.

84In the light of these cases, I am persuaded that the mental anguish suffered by Mrs. Velenosi does not warrant an award of the magnitude suggested by counsel for the Commission. Even having regard to the fact that she suffered special damages for which no itemized claim was made, I have come to the conclusion that an award of $1,000 is sufficient to provide real redress for the harm she has suffered, and that it is not "so low as to amount to a mere licence fee for continued discrimination."

Order

85Having found the respondents to be in breach of ss. 2(1) and 8 of the Human Rights Code, 1981, S.O. c. 53, as amended, it is hereby ordered as follows:

1. That the respondents post prominently at their principal place of business and upon the premises of the apartment building at 17 Robinson, in the City of Hamilton, such cards or notices as may be prepared by the Ontario Human Rights Commission for the purpose of communicating information with respect to rights and duties under the Human Rights Code, 1981.

2. That the respondents modify the application form used by them in carrying on their business as landlords so as to make it compatible with the provisions of the Human Rights Code, 1981. In case the respondents and the Ontario Human Rights Commission are unable to agree as to such modifications, I will remain seized of this matter unless and until such modifications are reported to me.

3. That for a period of two years the respondents provide to the Ontario Human Rights Commission copies of all applications for accommodation in their apartment building at 17 Robinson, in the City of Hamilton.

4. That they pay to the complainant Mrs. Mary Velenosi the sum of $1,000 as general damages.