Richards v. Waisglass

Ontario Board of Inquiry

Lorna Richards Complainant

v.

Lorne Waisglass Respondent

Date of Decision: July 29, 1994

Before: Ontario Board of Inquiry, J. House

Comm. Decision No.: 635

Appearances by: Grace Permaul, Counsel for the Complainant Doug MacLeod, Counsel for the Respondent

HOUSING ACCOMMODATION — RACE, COLOUR AND PLACE OF ORIGIN — rental accommodation denied on the basis of race — discrimination based on stereotype — INTERPRETATION OF STATUTES — definition of "discrimination" — EVIDENCE — balance of probabilities — DAMAGES — injury to dignity and self-respect

Summary: The Board of Inquiry finds that Lorne Waisglass discriminated against Lorna Richards because of her race when he refused to rent her an apartment in May 1991.

Lorna Richards is a black woman of about thirty years of age. She grew up in Barrie, Ontario, and has a degree from McMaster University. In 1991 she was employed as a social worker in Toronto.

In May 1991 she was looking for an apartment to rent and responded to an advertisement for a bright one-bedroom basement apartment in a single-family home.

She was shown the apartment by Debbie Rogers and she wanted to rent it. Ms. Rogers indicated that it was Mr. Waisglass, who was outside in the garden, who would make the decision. When Ms. Richards spoke to Mr. Waisglass, he was very cool, and uninterested. Ms. Richards asked for an application form, offered to provide him with references, and asked him to at least take her telephone number. Mr. Waisglass declined to take any information from her and indicated that he wished to keep showing the apartment as he had just put the advertisement in the paper.

Ms. Richards found Mr. Waisglass's reaction odd and asked her current roommate, Ms. Sworin, who is white, to contact him and find out whether Mr. Waisglass would treat her in the same manner. Ms. Sworin made an appointment, went to see the apartment, and was treated in an enthusiastic manner by Mr. Waisglass, who agreed to rent the apartment to her.

Mr. Waisglass argues that he did not discriminate against Ms. Richards because of her race. The difference in his manner was due to the fact that when Ms. Richards arrived he had been gardening all day and was tired, whereas when Ms. Sworin arrived he had had a shower, a nap and some dinner. he also indicated that when Ms. Richards came he thought that one of the women who had viewed the apartment earlier, a nurse, was seriously interested in renting it. However, she had phoned to decline the apartment before Ms. Sworin arrived. Finally, Mr. Waisglass contended that he thought that Ms. Richards had been gregarious and might have parties, while Ms. Sworin was reserved.

The Board of Inquiry finds that Ms. Richards has made out a prima facie case of discrimination. The burden of proof shifts to Mr. Waisglass to provide a non-discriminatory reason for the refusal. Considering the reasons offered, the Board of Inquiry concludes that Mr. Waisglass did discriminate on the basis of race.

The Board of Inquiry finds that Mr. Waisglass could not have come to a reasonable conclusion that Ms. Richards would be loud and have noisy parties on the basis of her demeanour during their brief encounter. Also, the Board of Inquiry is not convinced that the interest in the apartment shown by the nurse would have made such a significant difference to Mr. Waisglass since she had refused to give references and indicated that she was looking at other apartments.

The Board of Inquiry concludes that Mr. Waisglass was tired and perhaps irritated on this particular day. He did not deal with the decisions in a professional manner. There was no process in place and he asked for references or failed to ask for them based on "gut feeling." In the case of Ms. Richards, the Board of Inquiry found that he decided it was unlikely that a black woman would have the financial stability he required and likely that she would have parties. Both of these assumptions were based on stereotypes of black people and constitute discrimination based on race.

The Board of Inquiry orders Mr. Waisglass to pay Ms. Richards $300 as compensation for the higher rent which she paid over a six-month period, and $4,000 in general damages for hurt feelings, with interest. Mr. Waisglass is also ordered to inform the Ontario Human Rights Commission each time he rents his apartment over the next three years.

Cases Cited

Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 6

Basi v. Canadian National Railway Co. (No. 1) (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (Can.Trib.): 18

Foster Wheeler Ltd. v. Ontario (Human Rights Comm.) (No. 2) (1985), 1985 CanLII 5249 (ON HRT), 7 C.H.R.R. D/3193 (Ont. Bd.Inq.): 80

Foster Wheeler Ltd. v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 8514 (ON HCJDC), 8 C.H.R.R. D/4179 (Ont. Div.Ct.): 75

Fuller v. Candur Plastics Ltd. (1981), 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419 (Ont. Bd.Inq.): 15

Holden v. Canadian National Railway Co. (1990), 1990 CanLII 12529 (FCA), 112 N.R. 395, 14 C.H.R.R. D/12 (F.C.A.): 18

Insurance Corp. of British Columbia v. Heerspink, 1978 CanLII 1973 (BC CA), [1978] 6 W.W.R. 702 (B.C.C.A.): 7

Kennedy v. Mohawk College (1973), (Ont. Bd.Inq., Borins) [unreported]: 13, 18

Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781: 16

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 17, 78

R. v. Bushnell Communications Ltd. (1973), 1973 CanLII 475 (ON HCJ), 45 D.L.R. (3d) 218 (Ont. H.C.J.): 75

Zurich Insurance Co. v. Ontario (Human Rights Comm.), 1992 CanLII 67 (SCC), [1992] 2 S.C.R. 321, 138 N.R. 1, 16 C.H.R.R. D/255: 9

Legislation Cited

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 2: 4

s. 9: 4

s. 10: 76

Authorities Cited

Vizkelety, Beatrice, Proving Discrimination in Canada (Toronto: Carswell, 1987): 7

BACKGROUND

1By letter dated May 11, 1993, I was appointed by the Minister of Citizenship, the Hon. Elaine Ziemba, to inquire into a complaint filed by Lorna Richards against Lorne Waisglass, alleging discrimination in accommodation on the basis of race and colour.

2The matter was commenced by a conference call on June 8, 1993, at which time hearing dates were set. The dates originally set proved to conflict with the timing of a medical operation of a witness for Mr. Waisglass, and the matter was finally heard on June 6–8, 1994.

3Ms. Richards was represented by counsel, Ms. Grace Permaul. Mr. Waisglass was represented by Mr. Doug MacLeod. The Human Rights Commission was represented by Kikee Malik. At the outset, Ms. Malik advised me that the Human Rights Commission proposed to take no further part in the hearing. She indicated that the Commission was of the view that the respondent had made an offer which would have been a full and complete remedy, and that the remedial aspects of the complaint, in particular, had been dealt with. She requested that I draw no inferences with respect to the merits of the complaint from the fact that the Commission had withdrawn.

THE LAW

Statutes

4The question I am to answer is whether the complainant's right to equal treatment in the provision of accommodation, set out in s. 2 of the Human Rights Code, R.S.O. 1990, c. H.19, has been infringed. Directly relevant to this question are two sections of the Human Rights Code, s. 2 and s. 9.

5Section 2 reads as follows:

2(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, handicap or the receipt of public assistance.

Section 9 reads:

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

Discrimination

6The word "discrimination" is not defined in the Human Rights Code. Perhaps the most authoritative general definition of "discrimination" can be found in Andrews v. Law Society of British Columbia(1989), 1989 CanLII 2 (SCC), 10 C.H.R.R. D/5719 at D/5746 [para. 41759] (S.C.C.), where McIntyre J. stated:

[D]iscrimination may be described as a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

7Other courts have defined discrimination in essentially the same way. A succinct definition, and one which Beatrice Vizkelety in her text Proving Discrimination in Canada (Toronto: Carswell, 1987) finds to be particularly useful, is that set out in Insurance Corporation of British Columbia v. Heerspink, 1978 CanLII 1973 (BC CA), [1978] 6 W.W.R. 702 at 708 (B.C.C.A.):

Discrimination is "treatment or consideration of, or making distinction in favour of, or against a person, based on the group, category, or class to which that person belongs rather than on individual merit."

8It can be seen that this definition counterposes decisions made on the basis of the class to which one belongs, on the one hand, and decisions made on the basis of individual merit, on the other. The former are discriminatory if they are related to a prohibited ground of discrimination; the latter are never discriminatory.

9This same idea has been expressed by Sopinka J. in Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co.(1992), 1992 CanLII 67 (SCC), 138 N.R. 1 at 14 [16 C.H.R.R. D/255 at D/263, para. 17] (S.C.C.), where he stated:

The underlying philosophy of human rights legislation is that an individual has a right to be dealt with on his or her own merits, and not on the basis of group characteristics.

10As well, in my view, insight into the essence of discrimination is also provided by a comment of L'Heureux-Dubé J., in that same case, at p. 54 [D/285, para. 89]:

The mere statistical correlation between a group and higher risk cannot suffice to justify discrimination on prohibited grounds. Such correlation accepts the very stereotyping that is deemed unacceptable by human rights legislation: prohibited grounds of discrimination are used to ascribe characteristics of the group to all individuals in the class. I agree with the intervenor the Alberta Human Rights Commission that:

All generalizations on prohibited grounds are presumptively objectionable, whether they are capable of being reduced to statistics or not. It is the blind application of the stereotype to the individual, not the untruth of the stereotype, that makes such a generalization objectionable.

Discrimination based on statistical correlation is simply discrimination in a more invidious form.

The Burden of Proof

11Because this matter was addressed in argument by counsel for the respondent, I propose to set out here my understanding of the law as to how I should apply the burden of proof in a case such as this.

12First, I am to ask myself whether the complainant has made out a prima facie case. There was no dispute between the parties as to this first step.

13Mr. MacLeod for the respondent submitted that if a prima facie case is made out, I should evaluate the totality of the evidence using the standard articulated in Kennedy v. Mohawk College (unreported) (1973) Ont. Bd.Inq. (Borins). I should, he submitted, ask myself whether the facts as I find them on all the evidence are "consistent with the allegation and inconsistent with any other rational explanation."

14This formulation undoubtedly is derived from p. 3 of Prof. Borins' decision, where he wrote:

In a case where direct evidence is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is in issue. This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analysed and scrutinised in the context of the situation in which it arises. In my view, such conduct to be found discriminatory must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.

15It is my view that this articulation of the standard to be applied is no longer the law. Prof. Borins' formulation had already been doubted in Fuller v. Candur Plastics (1981), 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419 at [D/423] para. 3755, in which Prof. Kerr remarked in obiter that it appeared to require the complainant to meet the criminal standard of proof beyond a reasonable doubt.

16In 1982, the landmark decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Borough of Etobicoke (1982), 1982 CanLII 15 (SCC), 3 C.H.R.R. D/781 dealt with the question of burden of proof at [D/783] para. 6893 in the following terms:

Once a complainant has established before a Board of Inquiry a prima facie case of discrimination, in this case proof of a mandatory retirement at age sixty as a condition of employment, he is entitled to relief in the absence of justification by the employer. The only justification which can avail the employer in the case at bar, is the proof, the burden of which lies on him, that such a compulsory retirement is a bona fide occupational qualification and requirement for the employment concerned. The proof, in my view, must be made according to the ordinary civil standard of proof, that is, upon a balance of probabilities.

17While obviously written in the context of a case involving a possible bona fide occupational qualification, and thus somewhat different from the case at bar, I believe that the Court's comments on the burden of proof apply broadly, and are indeed binding in the case before me. Consideration of the Supreme Court's discussion of onus in O'Malley v. Simpsons-Sears Ltd., a case involving indirect discrimination, also mandates this conclusion, in my view (O'Malley v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 at [D/3108] para. 24782 (S.C.C.)).

18Kennedy v. Mohawk College, supra, has also been disapproved in cases heard under the Canadian Human Rights [Act]. In Basi v. Canadian National Railway Co. (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 at [D/5039] para. 38484, the Tribunal quotes the test from Kennedy v. Mohawk College, and then states:

It seems to me that a test of that nature is too severe, particularly under the present circumstances. It is virtually undisputed that discrimination generally must be established according to the civil standard of proof, a preponderance of evidence on the balance of probabilities. [Israeli v. C.H.R.C., supra; Bhinder v. C.N.R. (1981), 1981 CanLII 4297 (CHRT), 2 C.H.R.R. D/546; aff'd. 2 S.C.R. 561]

Holden v. C.N.R. (1990), 1990 CanLII 12529 (FCA), 112 N.R. 395, paras. 6 and 7 [14 C.H.R.R. D/12 at D/14] (F.C.A.) strengthens this position.

19On the basis of this jurisprudence, I propose to analyze the evidence in this case on the basis that the ordinary civil standard of proof, a preponderance of evidence on the balance of probabilities, applies.

THE CASE FOR THE COMPLAINANT

20The first witness was the complainant, Ms. Lorna Richards. She is a black woman of approximately thirty years of age. She testified that she had grown up in Barrie, Ontario, and has a bachelor's degree from McMaster University in Hamilton, Ontario. At the time of the incident in May 1991, she was employed in a social work capacity for a local social agency. She was similarly employed, though not in the same agency, at the time she gave her testimony. She testified that in May 1991, it had become necessary to leave her apartment on Marlee Avenue in Metropolitan Toronto due to the fact that her roommate at that address, Ms. Mary Sworin, was expecting to marry. The expectation was that the newlyweds would remain in the Marlee Avenue premises. Ms. Richards was therefore in the market for an apartment, close to her workplace and relatively centrally located, and was considering, among others, basement units attached to single-family dwellings. She did most of her apartment hunting on weekends, as her work schedule made extended weekday efforts difficult. On May 18, 1991, she responded to an advertisement in the Toronto Star newspaper, which advertisement was made Exhibit 3 at the inquiry. The advertisement was for a "bright one bedroom basement" unit, with a "sunken living room" near to the subway. The cost was $550 per month.

21Ms. Richards responded to this advertisement by calling the telephone number indicated and speaking to a "Lorne." An appointment was arranged for 5:00 p.m. that same day, which was the Saturday of a three-day holiday weekend. She was driven to the appointment by her friend, Lorraine Williams, who let her off at the address to which she had been directed, 101 Elm Ridge Drive. Ms. Williams parked the car, but returned to the Elm Ridge Drive address shortly thereafter. Ms. Richards was shown the unit by Debbie Rogers; it was a modified, upgraded basement unit in the single-family dwelling owned and occupied by Mr. Lorne Waisglass. Ms. Rogers was, at that time, Mr. Waisglass' fiancee. Ms. Richards testified that she was shown the apartment unit in an appropriate manner by Ms. Rogers. Ms. Rogers went out of her way to point out exceptional features in the rental premises, such as, for example, the amount of cupboard space in the kitchen. Ms. Richards herself, however, was not immune to the charms of the unit. She felt it was far superior to the units she had seen before that date, and given that the price was within the range which she had determined she could pay, she decided that she wanted to rent it. She informed Ms. Rogers of this, and Ms. Rogers indicated that the person who would make the decision was Mr. Waisglass. He had remained outside in the front garden, where he had been at the time of Ms. Richards' arrival. During the time that Ms. Rogers showed her the apartment, her friend Lorraine Williams had joined the other two women, and the three had some conversation in the basement unit before speaking to Mr. Waisglass.

22According to Ms. Richards, when she told Mr. Waisglass that she was interested in renting the apartment, he told her that he intended to let the advertisement run over the long weekend, and choose from the prospective tenants at that time. Ms. Richards asked for an application form. She was told Mr. Waisglass had none. She indicated that she would like, at least, to provide him with her references, but he was uninterested. She asked him to take her telephone number, at least, and he replied that he had it on the answering machine. He asked her no questions concerning her work situation, nor with respect to her present landlord. Ms. Richards testified that the conversation seemed very one-sided to her, and that Mr. Waisglass appeared evasive and uninterested in her as a prospective tenant. As she and her friend Ms. Williams returned to the Marlee residence, the two women began to discuss the situation. Both of them felt that there was something odd about Mr. Waisglass's refusal to interact with them, and both women came to the conclusion that he might be unwilling to rent to a black person.

23After she returned home, Ms. Richards discussed the situation with her roommate, Ms. Sworin, and it was decided that the latter, who is white, ought to go to the premises pretending to be interested, in order to ascertain whether she would be treated the same way. It was Ms. Richards' recollection that Ms. Sworin made the call to the Waisglass residence at 6:30 or 6:45 p.m., and made an appointment for 7:00 p.m. that same evening.

24While Ms. Richards was obviously not present for the interview between Mr. Waisglass and Ms. Sworin, from the latter's subsequent report, it became obvious that there had been significantly different treatment extended her. Ms. Richards came to the conclusion that she had been denied the apartment because of her race, which she felt was the only factor of distinction between herself and Ms. Sworin. She testified that she felt shocked, sickened, and angered by what had transpired. She felt that proof should be obtained, and she asked Ms. Sworin to provide Mr. Waisglass with the two cheques he had requested. Later, she called Mr. Waisglass on the telephone to ask him whether the apartment was still available. He told her that it had been rented to "a friend of the present tenant," when, in fact, she knew that he had accepted cheques from Ms. Sworin, who had no connection to that tenant.

25Ms. Richards felt that she had been discriminated against and decided to lay a complaint under the Human Rights Code, alleging that she had been denied equal treatment in accommodation due to her race or colour.

26Mary Sworin-Wright testified next. She had married her fiance, Matthew Wright, since the date of the complaint, and had annexed his last name to her own. She is a white woman approximately thirty years old. She is an honours graduate of St. Mary's University in Halifax, and was, at all relevant times, employed as a social worker.

27She stated that she had known Ms. Richards for about five years, and had been her housemate for two. She confirmed that she had been asked by Ms. Richards, on May 18, 1991, to feign interest in the apartment at 101 Elm Ridge to see whether Ms. Richards' suspicion of discriminatory treatment was justified or not. She therefore called the number given her, spoke to someone she believed to be Mr. Waisglass, and arranged for an appointment. In short order, she drove to the address in question. She was met by Ms. Rogers, who showed her the apartment, once again in an entirely appropriate way. She said Ms. Rogers pointed out the special features such as the sunken living room. Part way through their viewing of the apartment, Mr. Waisglass appeared. He proceeded to show her the apartment a second time, pointing out positive features. He was responsive to her, and in fact asked her whether she was interested. She said that she got the impression that, if she wanted it, she "pretty much had the apartment." References were taken from her at that time. She said that she was asked whether she could leave a cheque. She indicated that she had none. She was given no deadline, but told that, when she was able, she should drop over a first month's cheque and a last month's cheque.

28Ms. Sworin-Wright testified that she felt shocked at the difference in treatment which she believed she had received in contradistinction to Ms. Richards. She stated that when she returned to the Marlee residence where the two women lived, she felt that she had witnessed an injustice, and was willing to participate further to help make sure that evidence was available as to what had happened. She therefore returned to Mr. Waisglass's home within the next few days with her two cheques, and received a receipt signed by Mr. Waisglass, which was entered as Exhibit 4 at the inquiry. This receipt is undated. Ms. Sworin-Wright testified that she believes she brought the cheques either on Monday the 20th, or Tuesday the 21st of May 1991. She later stopped payment on the cheques.

29The third witness was Lorraine Williams. She is black, and in her early thirties, and employed as a social worker for the YWCA. She confirmed that she had driven Lorna Richards to her appointment to see the rental premises in question on May 18, 1991, and confirmed that she arrived at the property and dropped Ms. Richards off, approaching the home later. She testified that she tried to ascertain from Mr. Waisglass where she could go to see the premise[s] to be rented, but that he treated her most rudely, mumbling unintelligibly and waving his hand in the general direction of the back door. After rejoining Ms. Richards and meeting Ms. Rogers, the three women conversed for some time while in the basement suite. Once Ms. Richards indicated interest in the apartment, Ms. Rogers directed her to Mr. Waisglass.

30Ms. Williams generally confirmed that Mr. Waisglass behaved coolly to Ms. Richards, failed to take down any of the information she was volunteering about her employment and references, and told her that he had no application forms. She stated that he never said he had anyone else under consideration, but indicated that he had Ms. Richards' telephone number on his machine if need arose to communicate with her. Ms. Williams felt that his body language was negative, and that he failed to make eye contact during this conversation. She recalled him saying that he was not really prepared to make a decision as the advertisement had just been inserted, and, she said, it became obvious that the discussion was over, as nothing remained to be said.

31Ms. Williams confirmed the testimony of Ms. Richards with respect to the conversation which occurred in the car going back to the Marlee address, and the steps which were then taken, with her knowledge and advice, to find out whether the suspicions of the two women were justified.

32Buttressed by expert testimony as to the existence of housing discrimination and the manner in which this discrimination expresses itself, and further buttressed with expert opinion which establishes that denial of housing is an extremely hurtful, extremely socially painful experience, this was the case for Ms. Richards.

CASE FOR THE RESPONDENT

33The first witness for the respondent was Ms. Debbie Rogers, who is now the spouse of Mr. Waisglass. She testified that she is a lawyer, specializing in real estate transactions, in her twelfth year of practice. She identified a number of photographs, produced in a binder, which showed the apartment at 101 Elm Ridge Ave., both inside and out. This binder was made Exhibit 8 to the inquiry.

34Ms. Rogers testified that she recalled the visit of the complainant to see the apartment. She remembered that she liked the complainant very much. "We hit it off" she said. They had, she felt, a nice, enjoyable interview. When Ms. Richards said that she loved the apartment, Ms. Rogers referred her to Mr. Waisglass. At the time, Ms. Rogers did not live there, and did not have the authority to rent the apartment.

35She said that, when she took the complainant to talk to Mr. Waisglass, he did not seem receptive to hearing her. Ms. Rogers felt uncomfortable, because she felt Ms. Richards was getting the "cold treatment" from Mr. Waisglass.

36She stated that she knows Mr. Waisglass well, and that the way he treated Ms. Richards is the way that he treats people when he is tired. He had been gardening all day, she noted. Further, she stated that Mr. Waisglass is sensitive to noise. He paces the den when the tenant makes too much noise, and is irritated by the amount of noise she makes doing the dishes.

37She stated that her only reservation concerning Ms. Richards was that she seemed gregarious, and that that might not suit Mr. Waisglass, given his sensitivities. She told Mr. Waisglass that she liked her, however.

38She stated that, between the time Ms. Richards left and Ms. Sworin arrived, Mr. Waisglass came inside to take a shower and a nap, and at this time advised her that a woman who he had counted on to take the apartment called to say she was not interested. After he had showered and napped, he scheduled the appointment with Ms. Sworin. Ms. Rogers essentially confirmed Ms. Sworin's testimony concerning her viewing of the rental premises; that is, that she began showing the unit, but that Mr. Waisglass came downstairs part way through, and continued with the presentation.

39She also confirmed that it was Mr. Waisglass who encouraged Ms. Sworin to take the apartment. There was no hint that Ms. Sworin put herself forward in any way. She appeared to be reserved.

40Employer references and landlord references were taken, the first and last month cheques asked for. She recalled Ms. Sworin dropping off the cheques sometime later.

41Ms. Rogers testified that she felt that Ms. Sworin would be an ideal candidate for Mr. Waisglass's premises, because she appeared shy and reserved, while Ms. Richards had appeared gregarious. She did not indicate that she communicated this to Mr. Waisglass, however.

42Several peripheral points were made during her testimony. She testified that, in December 1990, she had helped Mr. Waisglass to rent the premises during a period in which he was away in Florida. An advertisement was placed in the Toronto Star, and Ms. Rogers' telephone numbers given. She became aware that a black secretary might be interested in the apartment; because the woman worked in her firm, Ms. Rogers was sure she could pay the rent, and communicated this to Mr. Waisglass, who authorized her to rent the apartment to the woman, if she should like it when she saw it. In the event, the woman had certain concerns about the location, and did not take it.

43I believe this evidence was entered to show that Mr. Waisglass is not a racist, and therefore not in fact a person who would have contravened the Human Rights Code as alleged. As well, Ms. Rogers made a heartfelt statement that she did not believe Mr. Waisglass to be racially prejudiced, and would not have married him if she thought him to be so.

44She also gave some detail about the person to whom Mr. Waisglass had hoped to rent the apartment, but had cancelled on that Saturday afternoon after Ms. Richards left. She said the woman was white, a nurse, perhaps in her 40s, who had shown interest in the apartment by taking certain measurements, but had said, earlier that same week when she had seen the apartment, that she would look elsewhere, as she had just begun her search.

45Lorne Waisglass testified on his own behalf. He indicated that he purchased the single-family dwelling in 1988. He indicated that the basement rental unit extends the full length of the house and is directly under his living quarters. He testified that, in spring 1991, his previous tenant was planning to vacate the basement unit, and he therefore placed an advertisement in the Toronto Star on May 3, 1991, offering the premises for $600 per month. He offered the apartment for two weeks at that price, but had no one who was interested. After comparing his unit to others offered in the area, he decided to reduce the asking price by $50 in his next advertisement. His new advertisement, with a stated rent of $550 per month, ran for the first time in the Toronto Star on Friday, May 17,1991.

46According to Mr. Waisglass, an ideal candidate presented herself just prior to the date when the new advertisement was to appear. She was a nurse in her 40s or 50s who appeared reserved and quiet. He determined to offer the apartment at the new, lower rate, even though she had responded to the advertisement carrying the higher rate of $600. This was done, and references were requested. According to Mr. Waisglass, the woman was not prepared to offer references at that time, as she was not prepared to make a commitment. She told him she would call him back with an answer before the end of the long weekend. He did not take her name, or her telephone number.

47Mr. Waisglass continued to show the apartment over the long weekend, the 18th to the 20th. He stated that he recalled having showed the apartment to four or five people before Ms. Richards came on the afternoon of the 18th. He stated that he had been gardening all day, and was very tired. He asked Ms. Rogers to show the apartment to Ms. Richards because he was gardening, and "Debbie showed it much better."

Debbie Rogers was downstairs showing the apartment for a relatively lengthy period, he testified, and there seemed to be laughter, "a distinct din" coming from downstairs.

48Mr. Waisglass testified that, when the three women approached him as he stood outside in the front garden, either Ms. Richards or Ms. Rogers said that Ms. Richards really liked the apartment. Ms. Richards asked for an application form, and he told her he didn't have one. She proferred references, but, he said, he didn't take them. He said he did not do so because he hoped that the earlier candidate, the nurse, might take the apartment. He did not, however, tell Ms. Richards that there was someone who was interested, to whom he had already offered the apartment. He stated that, in retrospect he knew that he had acted like "a bit of a jerk" at that interview.

49At any rate, after the interview ended, he went inside, spoke to Ms. Rogers, who said that Ms. Richards could create difficulty if he was interested in having a quiet situation in his home. Mr. Waisglass then took a shower, and a nap. At some point after he went indoors, the telephone rang. It was the nurse to whom he had offered the apartment, who was calling to decline. Mr. Waisglass told Ms. Rogers of this. Then, he received a call from Ms. Sworin, who expressed interest in the apartment. An appointment was set for just after dinner.

50Once again, the apartment was shown by Ms. Rogers at first. However, Mr. Waisglass joined the two women downstairs after the initial presentation of the apartment, and showed it again to Ms. Sworin. Ms. Rogers did not leave, as he had expected her to, and he sensed a "glowing endorsement from her." He felt that Ms. Sworin was quite reserved, and, in fact, he had to ask her to take the apartment. He asked her for references, and whether she had any cheques with her. An arrangement was reached whereby Ms. Sworin would bring him two rental cheques in the next few days, which she did. He confirmed that he did receive a call from Ms. Richards, inquiring as to whether the apartment was still available. He told her, falsely, that it had been rented by a friend of the vacating tenant. He said that he told her this because he saw no point in saying that he had simply found a better tenant.

51He stated that, once the nurse had cancelled, he was in a much more receptive mood, and therefore was more open to offering the apartment. He felt that Ms. Sworin was not the type to entertain, but would rather keep to herself.

52Mr. Waisglass testified that he is not the kind of person who would refuse to rent an apartment out of prejudice. He is Jewish, and grew up in a home which was highly sensitive to the injuries which racial discrimination can cause. He testified that he had once dated a black woman, and that he had once told Debbie Rogers, while he himself was in Florida, to go ahead and rent the apartment to a black woman who was a secretary in her law firm. As it happened, the woman finally decided not to take the apartment.

53As well, Mr. Waisglass provided evidence that he is supportive of the goal of non-discrimination in other contexts. In his position of Senior Manager/Real Estate for a large banking firm, he had written a letter publicly taking the organization to task for not providing for the needs of handicapped people while claiming to do so. He was, he said, criticized within the firm for making the company's failings public; he was informed that there are more discrete ways of changing the bank's policies.

54Evidence was also proferred with respect to certain actions taken by Mr. Waisglass after he became aware of this complaint. Given his belief that the rental process which he had followed was inadequate, he hired a human rights consultant to prepare an appropriate application form for use when renting his premises. This document was made Exhibit 18 to the hearing.

55On cross-examination, Mr. Waisglass indicated that, even after Ms. Sworin had cancelled the cheques and indicated no further interest in the apartment, he still made no attempt to call Ms. Richards, apparently because he would have felt embarrassed to do so, since he said it was rented to a friend of the vacating tenant. He stated that he had ruled out Ms. Richards as a person who might have parties, and make noise, largely after talking to Debbie Rogers.

56Furthermore, Mr. Waisglass testified that he recalled telling the Human Rights Commission, which initially investigated this matter, that the decision to choose Ms. Sworin in preference to Ms. Richards was one in which "financial ability was a big factor." He indicated that he did not actually ask Ms. Richards anything about her financial situation, but that it was just a "gut reaction on his part" at that time. He later qualified this to say that Debbie Rogers had told him that Ms. Richards had stated that she had two roommates at the apartment in which she resided, and that this may have affected his impression that she was not financially able.

ANALYSIS

57I was impressed with the quality of each of the witnesses I heard. I believe that all of them were honourable people, attempting to tell me truthfully what had happened on May 18, 1991.

58With respect to the three witnesses as to that day's events who were called for Ms. Richards, I found that there was nothing in their evidence which I disbelieved. Indeed, their evidence was supported in many particulars by the evidence of Mr. Waisglass and Ms. Rogers. I have no hesitation in finding that a prima facie case was made out on the basis of the testimony I heard and the exhibits introduced.

59Mr. Waisglass and Ms. Rogers did not disagree with any significant allegation of fact of the complainant, insofar as the events of May 18, 1991, were concerned. Rather, the crux of the respondent's case was that Mr. Waisglass did the things alleged, but was not motivated by racism when he did them. Rather, three reasons were offered to explain why Mr. Waisglass had acted coldly and aversely to Ms. Richards on that date. First, Mr. Waisglass had been gardening all day, and had been tired when he was called upon to deal with Ms. Richards. His later, far more favourable treatment of Ms. Sworin was a result of his having taken a shower and a nap, and having had dinner before she arrived to view the apartment approximately two hours later.

60Second, Mr. Waisglass treated Ms. Richards in a summary manner because he had offered the apartment to another woman, a white nurse in her forties, and he was expecting her to take the apartment. Her telephone call, which came just after Ms. Richards left and just before Ms. Sworin arrived, in which she said she was not interested in the apartment, affected his attitude toward Ms. Sworin when she arrived, making him far more anxious to rent the apartment.

61Third, Mr. Waisglass felt that Ms. Richards might not be a good tenant for him. Her conversation with Ms. Rogers had been exuberant, and he felt, on the basis of this that she might be prone to having parties. As well, at least compared to Ms. Sworin, he was concerned about the financial aspects of Ms. Richards as a tenant.

62On the evidence, I am convinced that Mr. Waisglass is not a person who is averse to black people. I have no doubt that, if called upon to interact with black people, he would have no hesitations or misgivings. It is not difficult for me to believe that he would find some black people attractive, nor that he would rent his basement apartment to a black person who was properly vouched for.

63There are areas of his evidence which I find it somewhat difficult to give credence to, however. Mr. Waisglass claimed that he had differentiated between Ms. Richards and Ms. Sworin on the basis of the propensity of the former to be loud, and to have noisy parties. The latter was, he said, more reserved. I have had the opportunity to observe Ms. Richards over the three days of the hearing into this matter. As well, Ms. Sworin-Wright was present and gave testimony during the first day. I do not believe, on the basis of my observations of the two women, that such a difference exists, nor that it is possible that Mr. Waisglass could have come to a reasonable conclusion that such was the case. He testified that he ruled out Ms. Richards, in large part after speaking to Ms. Rogers, who had said that Ms. Richards appeared to be quite gregarious, and that this might pose a problem. However, his behaviour in the front yard, when he, by his own admission, acted like "a bit of a jerk," and showed no interest in Ms. Richards as a tenant, occurred before he had had an opportunity to discuss the matter with Ms. Rogers.

64Nor do I believe that the conversation between Ms. Rogers, Ms. Richards and Ms. Williams in the basement apartment, which occurred while Mr. Waisglass was outside gardening, can have led him to such a conclusion. Ms. Rogers testified in chief that the conversation was a friendly, lively discussion, a "nice enjoyable interview." She made no attempt to ask the other women to keep their voices down because, I believe, there was nothing unusual about the conversation in the basement. It follows that Mr. Waisglass had no basis for his conclusion that Ms. Richards was likely to hold many parties. Indeed, I am at a loss to understand how even an exuberant conversation about the charms of an apartment would lead to a rational conclusion about anyone's propensity to hold parties. In coming to these conclusions, I do not believe that Mr. Waisglass was consciously trying to deceive me as he testified. Rather, I fear that these facts have become reorganized in his mind since his decision not to rent to Ms. Richards has become the subject of a human rights proceeding. In so concluding, I note Ms. Richards' testimony that, when the human rights complaint was finally received by Mr. Waisglass after a postal strike and other misadventures, neither she nor Mr. Waisglass could remember the complainant, nor the incident at all, but were reduced to trying to piece the facts together from their joint memories.

65In my view, the reconstruction of a dimly-remembered event months afterward may lead to unconscious exaggerations of the facts which were part of the decision-making process, particularly a decision taken without any formalities, or in accordance with any procedure.

66Similarly, I believe that Mr. Waisglass has retrospectively exaggerated the influence which the middle-aged nurse had on his decision. First, I note that there was no mention of any other candidate to Ms. Richards at the time of her viewing of the apartment, even though this would have been the easiest way to discourage her in her interest in the apartment. Nor was there any mention to Ms. Sworin of the existence of the nurse, despite the fact that she had apparently been the object of great good fortune in that she obtained the apartment immediately after the nurse's cancellation. On the evidence, the nurse had shown some interest in the apartment but had declined to offer her references, and said that she wanted to keep looking. Mr. Waisglass never even obtained her name, apparently, yet he testified that an important reason for offering the apartment to Ms. Sworin, and not to Ms. Richards, was the fact that the nurse called to say she was not interested at just the time between their visits, a matter of two hours or so. It seems to me unlikely that Mr. Waisglass, who is professionally involved with real estate leasing, albeit not residential leasing, would have made any decision to reserve the apartment for a woman who would not provide references and said that she wished to keep looking.

67As well, Mr. Waisglass testified that he showed the apartment to four or five persons prior to Ms. Richards on that day. This fact suggests that his level of commitment to the nurse was not very high; had his expectations been as he testified, I do not believe he and Ms. Rogers (who had important legal work to do that weekend, work she put off to keep showing the apartment) would have wasted their time showing the apartment to many prospective tenants.

68Finally, I note that although Mr. Waisglass told the Human Rights Commission, in a respondent questionnaire (Exhibit 19) dated November 7, 1991, that he had "certainly not ruled out Ms. Richards" even despite his apprehensions about her, the fact remains that when Ms. Sworin stopped payment on her cancelled cheques, and Mr. Waisglass had to begin once again to look for a tenant for the property, he never called Ms. Richards to offer it to her, or to inquire whether she was still interested. He explained this failure by stating that he would have felt embarrassed because he had already told her that another person known to the present tenant was going to rent the apartment. However, it does not seem to me that this presented an insuperable barrier, if Ms. Richards had not been finally rejected by him. He could simply have told her that the plan had fallen through. He knew Ms. Richards was very interested; yet still being without a tenant due to Ms. Sworin's cancellation, he sought out someone else.

69I have no doubt that Mr. Waisglass is quite able, generally, to make his decisions on the real characteristics of persons who deal with him professionally; as he put it in testimony, socially aware persons who have themselves suffered prejudice would give conscious thought to the consequences before discriminating. I believe he would be eminently fair to anyone who approached him in a business capacity. However, I find that on this particular day, Mr. Waisglass was tired and perhaps irritated. He did not give proper attention to the decisions he was making. Indeed, the entire rental process which existed was fundamentally inadequate, as Mr. Waisglass recognized in testimony. Although he is a professional involved in real estate, as is Ms. Rogers, Mr. Waisglass on this day in 1991 treated the decisions he was making as essentially private ones. He was not, I believe, conscious of the solemn obligations which the law imposes upon a landlord offering even a single apartment to the public. Those obligations include the obligation not to discriminate on any prohibited ground. I find that, on this day, Mr. Waisglass was not attentive to his obligations under the Human Rights Code. I believe that he was, on that day, treating his gardening as more important than the manner on which he decided to rent, or not to rent, the apartment under his home.

70I conclude that, as Mr. Waisglass told the Human Rights Commission, a substantial part of his decision to prefer Ms. Sworin over Ms. Richards had to do with his view of her likely ability to afford the rent. No doubt his initial preference for the middle-aged nurse was also influenced by the fact that she was professionally employed. But when Ms. Richards tried to convince him of her financial worthiness, he treated her coldly, and was uninterested in what she wished to tell him.

71It was suggested that this failure to accept particulars concerning Ms. Richards' employment was due to the fact that Mr. Waisglass would take references only later on in the process; however, I note that Mr. Waisglass did know the nurse's profession, even though she had declined to give references. In fact, I believe that there was no process whatever in place, and that Mr. Waisglass asked for references or failed to based on his "gut feeling." In this case, I believe he simply concluded that it was unlikely that a black woman would have the financial wherewithal to satisfy him concerning her long-term ability to rent the apartment.

72In so doing, Mr. Waisglass failed to treat her as an individual. Rather, he allowed an unconscious or semiconscious process of racial stereotyping to occur.

73Secondly, I conclude that Mr. Waisglass' decisions on that day were influenced to some degree by his conclusion that Ms. Richards was likely to give too many parties. I have said that I reject the suggestion that this conclusion was a result of Ms. Richards' conduct on that day; rather, it was an entirely irrational opinion.

74I conclude that this view of Ms. Richards flows from the application to her of a stereotype about black people. In coming to this conclusion, I note that Dr. Francis Henry, who gave expert testimony concerning housing discrimination, referred to a pervasive stereotype of black people as being noisy, and likely to play too loud music at odd hours.

75It is clear that where racial stereotyping is one of the factors which were involved in a decision not to rent a given residential premise, such decision constitutes a violation of the Human Rights Code. See R. v. Bushnell Communications Ltd.(1973), 1973 CanLII 475 (ON HCJ), 45 D.L.R. (3d) 218; Foster Wheeler v. Ontario Human Rights Commission (1987), 1987 CanLII 8514 (ON HCJDC), 8 C.H.R.R. D/4179.

76I therefore conclude, on the preponderance of the evidence, that Mr. Lorne Waisglass infringed upon Ms. Richards' right to equal accommodation in housing which is set out in s. 10 of the Human Rights Code.

REMEDY

77Ms. Richards testified that, given her need to obtain alternate accommodation quickly, she took an apartment nearby which rented for $600 per month. I have perused the exhibits filed by counsel for Mr. Waisglass, and am of the view that this represented a reasonable choice given the apartments available on the market at that time. However, I am unable to accede to the suggestion of counsel for Ms. Richards that her damages amount to the difference, $50 per month, for the full three years and one month since Ms. Richards was refused the opportunity to rent the premises at 101 Elm Ridge. I feel that an appropriate award in these circumstances would be $300, which gives effect to damages over six months. Given that I heard no evidence whatsoever as to any attempt to mitigate which Ms. Richards may have made, nor whether her the [sic] apartment was smaller, or larger, or less comfortable than the one offered by Mr. Waisglass, I feel it would be improper to award any larger amount. The amount awarded reflects the fact that, at least subjectively, Ms. Richards preferred the Waisglass apartment to the one she obtained. Except to that limited extent, it is my view that specific damages have not been proven.

78With respect to general damages, I have carefully considered the evidence of Ms. Richards as to the effect which Mr. Waisglass's conduct had on her. I believe her without hesitation when she states that she was shocked and hurt, and that that feeling continued for some time. I have also considered the opinion of the expert witness, Mr. Massaquoi, who had a consultation with Ms. Richards concerning the effect upon her. However, given that this consultation was not in any way proximate to the occasion, but rather occurred years later as the parties prepared for the hearing of this matter, it is difficult to believe that Mr. Massaquoi's expertise could be fully engaged. Nonetheless, his expert view that Ms. Richards had a strong sense of rejection cannot be doubted. I have also reviewed the cases proferred to me by counsel with respect to an appropriate award in cases in which residential accommodation is denied on a discriminatory basis. In particular, I have kept in mind that the object of my award shall be to provide relief to the person discriminated against, rather than to punish the discriminator (O'Malley v. Simpsons-Sears, supra).

79Counsel for Ms. Richards has requested that I award the amount of $10,000 under this heading. I do not believe that the amounts awarded under similar circumstances by other boards of inquiry allow me to make such an order. It is important that awards under the Human Rights Code are fairly comparable, in order to preserve the rule of law. Persons coming before boards of inquiry ought not to be subjected to a game of chance in which awards vary wildly according to which adjudicator one draws. As with every other area of law, the goal should be foreseeability and predictability.

80Ms. Richards has definitely suffered as a result of the discrimination which she encountered. Upon observing her, and on the evidence, I think the consequences were more severe than is sometimes the case. On the other hand, I do not think I could say, as was said of the complainant in Scott v. Foster Wheeler (1985), 1985 CanLII 5249 (ON HRT), 7 C.H.R.R. D/3193 at D/3195 [para. 25536], that "in the dozen or more Boards of Inquiry which I have conducted, I have never seen a complainant quite so crushed by the experience." Having said that in that case, the Board of Inquiry ordered general damages in the amount of $4,500. That amount was upheld by the Divisional Court (see supra).

Keeping in mind that that award was almost a decade ago, I have decided to order that Ms. Richards be paid $4,000 in general damages.

81I further order the respondent to pay the complainant, Lorna Richards, prejudgment interest at the rate of 9 percent from May 18, 1991, to the date of this decision. I further order that the respondent pay the complainant post-judgment interest from the date of this judgment until full payment has been made, at the rate of 9 percent.

82I further order Mr. Waisglass to offer the application form which has been designed for his use (Exhibit 18) to all persons who attend at his residential premises in future for the purposes of viewing the rental premises being offered. I further order, upon the suggestion of Ms. Richards, that he inform the Human Rights Commission in writing on each and every occasion during the next three years that the premises are available to be rented, so that at its option the Commission can assure itself that an appropriate application form is used whenever the apartment becomes available for rental.

83I have decided not to require Mr. Waisglass to attend a seminar on housing discrimination. I feel that his conduct on the day in question was an aberration, and that it is very unlikely that it would repeat itself. I have also decided not to require him to advertise any future vacancy in a "community newspaper," as was suggested. Mr. Waisglass had advertised in the Toronto Star, a newspaper which has broad readership in the Toronto area, including among persons who are members of minorities. I have no doubt that any such advertisement will come to the attention of many members of minority groups and that any applicants will receive appropriate consideration from Mr. Waisglass.