Ontario Board of Inquiry
Carol McEwen (deceased) by her Executrix Betty Joy Kellar
Complainant
v.
Warden Building Management Ltd. and V.I.P. Proprety Management Ltd.
Respondents
February 7, 1990
December 6, 1993
Before:
Ontario Board of Inquiry, George N. Carter
Comm. Decision No.:
577
Appearances by:
Richard G. Floyd, Counsel for the Complainant
Anthony D. Griffin, Counsel for the Commission
Shane Clair, Counsel for the Respondents
SOURCE OF INCOME — housing accommodation denied to recipient of social assistance benefits — HOUSING ACCOMMODATION — rental accommodation denied on the basis of source of income
Summary: The Board of Inquiry finds that V.I.P. Property Management Ltd. discriminated against Carol McEwen because she was in receipt of social assistance.
In September 1989 Carol McEwen signed a lease for an apartment at 127 Tracey Park Drive in Belleville, Ontario. She gave the management company a cheque post-dated for two weeks prior to the date when she was to move in. However, a few days later, her cheque was returned with a letter informing her that the management company did not accept post-dated cheques. It also stated that she could not lease the apartment because she was on Mother's Allowance, unless her case worker would ensure payment of her rent directly.
Ms. McEwen has since died of cancer, and the complaint is carried by her executrix, Betty Joy Kellar. Ms. McEwen was a single mother with an 11-year-old daughter and she was receiving Mother's Allowance. She had a history of being a good tenant and paying her rent on time.
The Board of Inquiry finds that Ms. McEwen was discriminated against because she was receiving social assistance, by being required to have her rent paid directly by her case worker.
The Board of Inquiry orders V.I.P. Management to cease requiring direct payment of rent from persons who are in receipt of social assistance, and to notify any new tenants who are receiving social assistance that direct payment is not required.
The Board of Inquiry also orders V.I.P. Management to pay Ms. McEwen's estate $1,750 as compensation for additional rent she paid for an alternative apartment, as well as compensation for damages to Ms. McEwen's feelings and self-respect in the amount of $2,500.
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 2(1): 8, 11
s. 41(1): 12
s. 45: 9
1Pursuant to s. 38(1) of the Ontario Human Rights Code [R.S.O. 1990, c. H-19], I was appointed a member of a panel of persons under s. 35(1) to form a board of inquiry to hear and decide the complaint of Carol McEwen by her executrix, Betty Joy Kellar, dated February 7, 1990, alleging discrimination in accommodation on the basis of receipt of public assistance by Warden Building Management Ltd., V.I.P. Property Management Ltd. and Carol Harrington.
2At the commencement of the hearing on September 29, 1993, at Belleville, Ontario, counsel for all parties agreed that the respondent Carol Harrington should be struck from the proceedings because she was a mere functionary in the offices of the respondent V.I.P. Property Management Ltd., and had no discretion regarding the timing or control of a letter from V.I.P. Management to the late Carol McEwen that is the proximate cause of the discrimination alleged.
3Counsel for the respondent submitted that the matter had taken too long to reach the board of inquiry stage of the proceedings. However, counsel could point to no substantial evidentiary prejudice to either of his clients. Delays in human rights proceedings, as in any judicial or quasi-judicial matters, are lamentable but inevitable in light of backlogs and the novelty of some claims for compensation. From an evidentiary vantage point, the loss of consequence is the untimely death of the complainant. However, for reasons discussed further in this judgment, the liability issue is determined by evidence authored by the respondent V.I.P. Property Management Ltd. independent of the deceased's testimony were she alive to give it. I would be loath in any event to visit the consequence requested by respondent's counsel on the estate of Carol McEwen by reason of her death or the Commission's systemic delay. There is no kicking against some pricks.
4At the conclusion of the evidence and submissions, counsel for all parties were invited to settle the issue of damages, the only substantial issue of fact in these proceedings. They were unable to agree, necessitating this judgment, though the parties appeared close to resolution. Counsel for the respondents had argued at length that the complainant had suffered no special damages because, had the lease been honoured, her lower rent would have resulted in a lower rent subsidy and conversely, the higher rent she continued to pay resulted in a higher rent subsidy. The issue of comparative rent subsidies is irrelevant, as I so ruled on more than one occasion during the course of the hearing.
5Carol McEwen died of cancer on September 11, 1992. Her estate is represented by her sister and executrix, Betty Joy Kellar. Counsel for the respondents did not contend there was a loss of jurisdiction when a complainant dies or that the death of a complainant prevents the board of inquiry from proceeding. Had such a contention been made, this submission would have been without merit notwithstanding the respondents have had no opportunity to depose or cross-examine the complainant. The complainant, through her executrix, has the burden of proof on a balance of probabilities. Depending on the circumstances, the absence of a witness, particularly where he or she is the complainant, may accrue to the benefit of the respondent. In any event, I am satisfied that the respondents were not at any prejudice given the evidence before me by reason of the complainant's unavailability.
6With regard to liability, the facts are simple and require no extensive elaboration. On September 27, 1989, Carol McEwen signed a lease for an apartment at 127 Tracey Park Drive, Belleville, Ontario. This agreement was with Warden Building Management Limited, the owner of the property through its agent, Proper T Management. Ms. McEwen gave Proper T Management a post-dated cheque dated November 30, 1989, in the amount of $406. She was to move into the apartment on December 15, 1989. Between September 27, 1989, and September 29, 1989, Proper T Management was replaced as property managers by V.I.P. Property Management Ltd. resuming a position V.I.P. Property Management Ltd. had with Warden Building Management for some years but for a brief interruption. Upon review of the files received from Proper T Management, Carol Harrington was directed to send Ms. McEwen a letter dated September 29, 1989, returning her deposit cheque explaining:
(1) the company policy of not accepting post-dated cheques and
(2) the unit would not be held unless the amount was paid in full upon executing the lease due to terminate May 31, 1990.
7Had the letter merely returned the cheque because it was post-dated, Ms. McEwen would not have a cause of action under the Human Rights Code. Unfortunately for the respondents, the letter went on in its second paragraph to state:
As you are aware, we do not accept applications from persons on Mothers' Allowance unless of course their case worker will ensure payment direct, payable to ourselves and on or before the first of each month.
Ms. McEwen was a single mother with an 11-year-old daughter and a recipient of "Mothers' Allowance." She also had a history of being a good tenant who paid her rent on time or within a few days of its due date.
8The letter from V.I.P. Property Management Ltd. gave two distinct reasons for repudiating the rental agreement. While it is not a violation of the Human Rights Code to refuse post-dated cheques, it is a clear and intentional imposition of a burden on recipients of public assistance to require direct payment from their caseworker by reason of receipt of public assistance — this burden not applying to persons more favourably situated. Mothers' Allowance is a well-known form of public assistance throughout Ontario. The direct payment requirement imposed on Ms. McEwen was a flagrant and willful discrimination contrary to Human Rights Code, s. 2(1) which prohibits various forms of unequal treatment including infringements of the public's right to equal treatment in accommodation because persons are in receipt of public assistance.
9By reason of Human Rights Code, s. 45, the acts of V.I.P. Property Management Ltd. as property managers and agents of the respondent Warden Building Management Ltd. are acts for which Warden Building Management Ltd. is vicariously liable. V.I.P. Property Management Ltd. was retained to inter alia lease the property at 127 Tracey Park Drive, Belleville, Ontario. In the execution of its retainer with Warden Building Management Ltd., V.I.P. Property Management Ltd. undeniably intentionally infringed Ms. McEwen's right under the Human Rights Code to equal treatment.
10Ms. Betty Joy Kellar testified under the disability of a severe stutter that made her evidence difficult to give but none-the-less credible on account of it. She said that she was close to her sister, [and] was aware of her problems with V.I.P. Property Management Ltd. and Ms. McEwen's attempts to find alternate accommodations until shortly before her untimely death. I accept the evidence of Ms. Kellar without reservation and find that Ms. McEwen took reasonable steps to mitigate her damages as long as it remained within her power to do so. Conversely, I am not satisfied that the respondents have proven a failure to mitigate on her part. I also accept Ms. Kellar's evidence that Ms. McEwen suffered stress, anxiety, humiliation, a loss of dignity and self-respect, as well as a loss of equality of opportunity to contract without discrimination. Her failing health could only have made her situation the more difficult to endure.
11Counsel for the respondents made lengthy submissions concerning his clients' previously unblemished record and the reasonableness of the direct payment policy, neither of which is a defence to the proven violation. I accept the evidence of V.I.P. Property Management Ltd. that had they been better advised, they would not have included the offending paragraph in the letter repudiating the rental agreement. I also accept their evidence that public agencies delivering assistance have inconsistent and conflicting policies regarding direct payments to landlords. But unfortunately for the respondents, the Human Rights Code as worded does not entertain a defence of reasonable discrimination, and it is certainly no defence to s. 2(1) of the Code to say sometimes we get away with the prohibited ground of discrimination in the management of over 1000 units in the Belleville area. Neither government acquiescence nor business convenience is a defence.
12On the facts as I find them, the Human Rights Code s. 41(1) requires an award of special and general damages in favour of the complainant.
13Section 41(1) of the Code states that:
41(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part 1 has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,
(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 respect of the complaint and in respect of future practices; and
(b) direct the company 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.
The purposes of damage awards under the Human Rights Code are to place the complainant in the position he or she would have enjoyed had the infringement not taken place, and to compensate aggrieved persons for the infringement of their rights under the Human Rights Code.
14Having heard extensive if not always edifying submissions on special damages, I award the complainant one thousand seven hundred and ninety-five dollars ($1,750 [sic]) being the difference in what she paid in rent and what she would have paid the respondents over a nine-month period from December 1989 through September 1990. I award pre-judgment interest on this amount at 10 percent commencing February 1, 1990, until the date of this judgment, with post-judgment interest at 8 percent until paid.
15I award general damages for loss of dignity and self-respect arising from the infringement and loss due to the denial of equality of opportunity in the amount of two thousand five hundred fifty dollars ($2,500 [sic]). I award pre-judgment interest on this amount at 10 percent commencing February 1, 1990, until the date of this judgment with post-judgment interest at 8 percent until paid.
16Bearing in mind the extensive holdings managed by V.I.P. Property Management Ltd. in the Belleville, Ontario, area, I order it to post at its principal place of business and mail to Tracey Park complex tenants, cards prepared by the Ontario Human Rights Commission for the purpose of communicating rights and duties under the Human Rights Code.
17The facts of this case do not warrant an award of aggravated damages. Aggravated damages are compensatory but cover much the same ground as punitive damages. None-the-less, the Human Rights Code must be known and taken seriously by the public. In light of these policy objectives, the evidence Ms. Kellar gave of her deceased sister's motives in commencing her claim take on particular significance. One of Ms. McEwen's concerns was that other recipients of public assistance not suffer the same humiliation and attendant anguish she experienced. A remedial remedy intended to insure compliance and publicize rights to freedom from discrimination in accommodation on account of receipt of public assistance speaks well for the living.
18I am satisfied on substantially more than a balance of probabilities that the Commission has met its burden of proof regarding liability and damages and that the order which follows is established to be in the publics' interest.
ORDER
19This Board, having found the respondents Warden Building Management Ltd. and V.I.P. Property Management Ltd. to be in violation of s. 2(1) of the Ontario Human Rights Code in respect of the complainant Carol McEwen (deceased) through her executrix, Betty Joy Kellar, for the reasons given, orders the following:
- Warden Building Management Ltd. and V.I.P. Property Management Ltd. are jointly and severally liable to pay forthwith:
(a) special damages in the amount of $1,750,
(b) general damages in the amount of $2,500,
(c) prejudgment interest on both general and special damages at 10 percent commencing February 1, 1990, until the date of this judgment,
(d) post-judgment interest at 8 percent from the date of this judgment until paid.
The respondent V.I.P. Property Management Ltd. shall post at its principal place of business and mail to each of its Tracey Park Complex, 127 Tracey Park Drive, Belleville, Ontario, tenants, cards prepared by the Ontario Human Rights Commission for the purpose of communicating rights and duties under the Human Rights Code within thirty days of the date of this order, and continue to mail the appropriate notice to lessees for one year from the date of this order as new tenants may be added.
The respondent V.I.P. Property Management Ltd. shall within ten days of entering into any new tenancy agreement with a person receiving public assistance at the Tracey Park Complex, 127 Tracey Park Drive, Belleville, Ontario, give notice in writing to the lessee and to the Ontario Human Rights Commission which notice shall specify that direct payment of rent from any social agency administering public assistance is not required.
The respondent V.I.P. Property Management Ltd. shall cease requiring direct payment of rent from persons receiving public assistance.
The Ontario Human Rights Commission shall monitor compliance with this order for one year from its date, and shall assist the respondent in selecting the proper wording of such notices as required.