BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;
AND IN THE MATTER OF the complaint by Mary Andrews dated January 2, 1991, alleging discrimination with respect to accommodation on the basis of family status.
BETWEEN:
Ontario Human Rights Commission
Commission
-and-
Mary Andrews
Complainant
- and -
Czeslawa Ptasznyk
Respondent
DECISION ________________________________
Adjudicator:
Sri-Guggan Sri-Skanda-Rajah
March 5, 1998
Board File No.:
BI-0202-92
Decision No.:
98-004
A P P E A R A N C E S
Ontario Human Rights Commission
Fiona Sampson, Counsel Lisa Cirillo, Student-at-Law
Mary Andrews
On her own behalf
Czeslawa Ptasznyk
Anna Marie Traer, Agent
INTRODUCTION
1This complaint, filed on January 2, 1991, alleged that Czeslawa Ptasznyk (the Respondent) discriminated against Mary Andrews (the Complainant) on the basis of family status when she denied her the right to equal treatment with respect to the occupancy of accommodation contrary to s. 2 and s. 9 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended. The complaint also included allegations regarding the denial of the same accommodation to Ms Andrews' three year old child. The complaint was amended, on consent, striking the allegations pertaining to the child.
2In early December, 1990, an "Apartment for Rent" sign was posted in relation to an apartment owned by Mrs. Ptasznyk on Bloor Street West. The sign contained no words explicitly or implicitly excluding children from occupying the premises. The Complainant called and made enquiries about the apartment, stating that it was for her, her husband and child. Subsequently, her husband was shown the apartment by the Respondent and he offered to pay her first and last months' rent. He also expressed his willingness and ability to clean-up and effect the necessary repairs to the apartment. The Respondent did not explicitly tell the Complainant or her husband that she did not want children in her building. But rather, according to the Commission's witnesses, she voiced her views as to why the apartment was unsuitable for children.
3The Respondent denied the allegations, insisting that she has a right to select suitable tenants and denying that she operated an "adults only" building.
PRELIMINARY ISSUES
4At the commencement of the hearing, the Respondent requested that the complaint be stayed or dismissed on the basis that:
(a)
settlement terms had been worked out among the parties but the Complainant failed to return documents pertaining to the settlement in a timely manner;
(b)
the Complainant repeatedly changed the terms of oral agreements and thus caused considerable delay; and
(c)
the Complainant, through the foregoing acts, abused the legal process.
5The Respondent did not lead any evidence in support of the above motion. The Complainant and the Commission acknowledged that there were prolonged settlement negotiations, but denied that a settlement acceptable to all parties had been reached at any time. They also denied that delay was solely attributable to them.
6In Nisbett v. Manitoba Human Rights Commission (1993), 1993 CanLII 3366 (MB CA), 18 C.H.R.R. D/504 it was held that if delay results in prejudice that significantly impairs the ability of a party to receive a fair hearing, a Board of adjudication may lose jurisdiction. As no evidence was led to show that there was prejudice to the ability of the Respondent to mount a full defence to the allegations, the motion was dismissed.
THE EVIDENCE OF THE COMMISSION:
7The witnesses called by the Commission were: Mary Andrews (Complainant); Tom Leonard (Complainant's spouse); Janet Andrews (Complainant's sister); Peter Raposo (Janet Andrews' spouse); and, Tara Jackson, the Commission's Intake Worker.
Testimony of Tom Leonard:
8Mr. Leonard testified that he attended to view the apartment by appointment and that the Respondent, Mrs. Ptasznyk, began the viewing by stating that it was not good for children because of the busy street location; children make a lot of noise; and, they (children) need a place to run. In response, he explained to the Respondent that his daughter was quiet and that she would not bother older neighbours. Furthermore, he testified that he had difficulty to even see the apartment because the Respondent was reluctant to show it to him, claiming it needed a lot of work and painting. When he finally saw it, he decided he could fix and paint it himself and told this to her. However, the Respondent continued to give reasons for not having a child there. He felt he did not dare inform her that his wife was 6 months pregnant with their second child.
9Mr. Leonard described the Bloor Street West apartment as bigger than their then two-bedroom apartment in Mississauga. He wanted to take the apartment and offered the Respondent, first and last month's rent. She did not accept his offer and advised him that someone was coming later to see the apartment. He did not recall being offered an application form by the Respondent, but recalls that he left his name and telephone number with her.
Testimony of the Complainant
10Around December 10, 1990, the Complainant called the Respondent to enquire about the premises for rent. On being questioned by the Respondent, she explained that she was seeking the apartment for herself; her husband and her child. The Complainant testified that the Respondent made comments to the effect that the apartment was not suitable for children. As she felt that the Respondent was stonewalling, she called her husband, Tom Leonard and requested that he called the Respondent to view the apartment. A few days later, she also arranged for her sister and brother-in-law to apply for the same apartment on her behalf.
11The Complainant testified that after failing to rent the Respondent's apartment, she and her husband continued to live at their Mississauga address until the end of April 1991. In May 1991, they rented an apartment on Anglesea Boulevard where they resided until the end of October 1992. She also testified that, had she been offered the Respondent's apartment, she would have rented it until November 1992.
12The Complainant experienced significant upset related to the denial of the rental opportunity. Under cross-examination, the Complainant stated that she had not sought medical attention for her experience of stress and upset. She reiterated that she felt that she was treated unfairly and she wanted to get some justice.
Testimony of Janet Andrews and Peter Raposo
13Janet Andrews testified that, at her sister's request, she called about the apartment to verify its availability, the amount of rent charged and the characteristics of the type of tenant that the landlord sought. Janet Andrews, by arrangement, attended in person and filled out a rental application form on behalf of Mary Andrews and Tom Leonard a few days prior to December 15, 1990. She also persuaded her husband, Peter Raposo, to telephone the Respondent to further verify the availability of the apartment and the characteristics of the type of tenant she wanted. Mr. Raposo testified that he pretended to be single and childless to ascertain whether the Respondent was more receptive to him as a prospective tenant. He testified that during their conversation the Respondent discussed with him the potential uses of the second bedroom as an office and thus he drew the inference that the Respondent preferred a tenant without children.
Testimony of Tara Jackson
14Tara Jackson, testified that she is an Investigator with the Commission, who at the time of these allegations was acting as a relief Intake Officer. She described her duties as an Intake Officer as follows: answer calls or deal with in-person enquiries; make notes of these discussions; attempt early settlement initiatives; phone the other party to relay the allegations made against her/him; elicit a response to the allegations from the other party; and, offer to make an appointment to resolve the matter. She stated that at this stage of the process, the allegations are not treated as a formal complaint.
15Ms Jackson recalled that she received a call from the Complainant around early December 1990. The Complainant alleged that the Respondent denied her the opportunity to rent an apartment because she had a child. Ms Jackson recalled phoning the Respondent and relaying the allegations to her. Ms Jackson also recalled receiving a call from Anna Traer, likely the same day as her phone call to the Respondent. She was adamant that Anna Traer called her, and that she did not call Traer. She recalled that Traer specially referred her to the "Dudnik case"and asked whether she (Jackson) did not know that the case was under appeal and thus, landlords could exclude children from their rental premises. Ms Jackson testified that she informed Traer of her understanding of the then current law. She described Traer's conduct as hostile and aggressive during this telephone conversation.
16When asked how she remembered this particular case and its details, without the benefit of notes, Ms Jackson responded as follows: the Respondent admitted that she did say that Bloor St. was unsafe for children; and, Traer's attitude and questioning along the line of "how come you do not know the law".
17Ms Jackson testified that neither the Respondent nor her daughter Anna Traer said anything to her about the apartment being reserved for two men.
THE EVIDENCE OF THE RESPONDENT:
18The witnesses called by the Respondent were: Mrs. Czeslawa Ptasznyk (Respondent); Anna Marie Traer (daughter and agent of Respondent); Anna Tusca; Eva Stac; and, Roman Sokolicz.
Testimony of Mrs. Ptasznyk
19Mrs. Ptasznyk testified on her own behalf. She testified she had about 10 years of schooling and subsequent training as a Nursing Assistant. She testified that she learnt Ukrainian, Polish, German, some French in Montreal and finally, English, since coming to Toronto. She testified that she has not learnt English well and that "people often misunderstand" her.
20She has resided at the apartment building she owns at Bloor Street West since 1969. She described the building as small with a basement and 2 floors, containing four apartments above ground and a basement apartment. The building is about 70 years old. She described most of her tenants at the time of this incident as in the 30 to 50 age range and that she had no tenants who were "seniors" at the time of these allegations.
21Prior to the events in this complaint, the Respondent had lived on another busy street in Toronto where there were several accidents involving children. She testified that she had witnessed a three year old being run over a by a truck and as a result, she was unable to sleep for several days. For these reasons, she is personally very apprehensive about children living on Bloor Street.
22The Respondent cited examples of children who lived in her building: a man separated from his wife had a 8 or 9 year old daughter who visited him on some weekends; and, her daughter, Ms. Traer, had also lived there with her two children at one time. She testified that on various occasions she had shown her vacant apartments to families and that they never called back. In other cases, they did not show up for viewing. In support of her claim that she does not discriminate, she testified that she has had a person of colour and a disabled man as tenants.
23In December 1990, when her tenants moved out of one of the apartments, another tenant informed her of two men who were interested in renting the apartment. She testified that the vacated apartment was messy, the bathroom, kitchen and floor needed repairs, and the stained-glass window frame was destroyed.
24In relation to steps she took to rent the vacant apartment, she testified: "I did put up sign on December 10th".
"Boys did not come".
"I was waiting from the end of November".
"No. They [the tenants] did not contact them [the boys] but they assured me that they [the boys] will come". [parenthesis added for clarity]
25Additionally, she gave her reasons for posting the for rent sign as follows:
"just in case they [the two men] didn't take it [apartment]".
"to ask if [anyone] interested in an apartment in this area".
26She acknowledged that after the sign was posted, she took applications from a few people who came to view the apartment. She also acknowledged that when Tom Leonard viewed the apartment, she had only heard of the two men, Roman Lykosc and Roman Sokolicz, and that she had no knowledge of their personal background, "handyman" skills, nor credit history.
27Although she later claimed that the apartment was really reserved, she acknowledged that she did not mention this in her conversations with prospective tenants, Mary Andrews and Janet Andrews nor to Tara Jackson of the Commission.
28The Respondent testified about the suitability of the apartment for families with children as follows:
"Not suitable because apartment was dirty, not for the reason of children"
"Then I just told her [the Complainant] that traffic was very dangerous, just a few steps to the road"
"Very risky and dangerous"
29She denied saying to anyone that the apartment "more suitable for one or two persons" nor that "children need to jump and run and play in a yard". She did, however, acknowledge mentioning her concerns about children's safety to Janet Andrews.
30With respect to her dealing with the Complainant, the Respondent testified as following:
she never called me again to see it
I think she sent the husband
he was ready to take it
he wanted to sign the tenancy agreement
he just wanted to take it and I was not ready
I told him about the danger.
31The Respondent's tenant selection process usually involved her taking a few applications (filled-in and signed), checking to see "who has no problems" and then, as the final step, she informs the applicants of her decision. She described the application form as "informal".
32The Respondent met with Roman Lykosc and Roman Sokolicz for the first time on December 15, 1990, after the "Apartment for Rent" sign was posted, and taken down. She confirmed that this meeting was subsequent to her telephone conversations or direct dealings about the apartment with Mary Andrews, Tom Leonard, Janet Andrews, Peter Raposo or Tara Jackson. She also acknowledged that she preferred the two single men as tenants "because they were first". She stated that she was able to say "yes" right away to the two men and that she did not have to check their backgrounds. She testified she was able to assess whether or not they have problems by just looking at them.
33Finally, in relation to Tom Leonard, the Respondent testified that she was unsure whether she informed him that she was awaiting the two men. She recalled, however, that she informed him that the apartment was available. When questioned directly by the Board about not providing Mr. Leonard with an application form to complete, she responded forth rightly that she did not have much interest in getting an application form filled-in by him. On the other hand, she also acknowledged in her testimony that Tom Leonard was the "best applicant" and that if "the boys" did not show she would have given the apartment to him. She re-stated her position that she did not have an obligation to rent the apartment to Tom Leonard as she had a right to choose her tenants.
34When cross-examined, the Respondent testified that she was unaware of the Human Rights Code and was unaware that it was against the law to exclude children from apartment buildings until she was informed of this by Ms Jackson. She also took the position that there was no reason to know the law, stating that such information may be in newspapers but she had no interest in it. She reiterated that she has the right to choose who are her tenants, by saying "yes" to decent and normal people. She also asserted that she loved children and described the instant complaint as "a put up case".
Testimony Of Anna Maria Traer
35Ms Traer, identified herself as the Respondent's daughter. She has been employed as a law-clerk since 1978, and has worked in that capacity for a large law firm since November 1985. She holds a B.A. degree from the University of Toronto and a Certificate in Law Office Administration from Ryerson Polytechnic University.
36She first became aware of the instant allegations on December 11, 1990, when her mother called her following a telephone conversation between her mother and Tara Jackson of the Commission. Traer acknowledged that the Respondent did not mention the reservation of the apartment for "two men" during their first telephone conversation regarding these allegations. She testified she made contemporaneous notes of her conversation with her mother, and the notes contained references to Ms. Jackson mentioning the Salmon decision and the amount of $25,000.00 to her mother.
37Her mother, the Respondent, gave her Tara Jackson's phone number and asked her to straighten out the misunderstanding about her (the Respondent's) concern for the safety of children on Bloor Street West.
38Ms Traer testified that she learned from Tara Jackson that the Complainant had not completed an application an so she suggested that the Complainant go to her mother, the Respondent, to complete same. She recalled that Janet Andrews, the Complainant's sister, applied in person on December 12, 1990, as it was her (Traer's) birthday. On December 12, she (Traer) was unaware that the apartment was being reserved for two men and admitted that this " reservation" was first raised with her in Fall 1992.
39She stated that from December 1990, she had no subsequent discussion with her mother about this matter until Fall 1992 when she realized the seriousness of these allegations. She later admitted that she assisted her mother in responding to the Commission's questionnaire in May, 1991. In June 1996, she became her mother's representative/agent and was apprised of all the details relating to these allegations.
40With respect to the alleged exclusion of families with children, Ms Traer testified that she grew up "knowing the dangers of Bloor Street" from living in her mother's building, and that one had to be extremely careful when crossing that street to get to the subway. She also testified that she had seen children, teens, people in their twenties, parents, people of different ancestries and disabled persons among her mother's tenants during the time that she lived in or visited her mother's apartment building. She described her mother as a warm person who cared for people.
41With respect to knowledge of applicable human rights law, Ms Traer asserted that she was given the name of the Salmon decision by her mother who had received it from Ms Jackson of the Commission. She also added that she obtained a memorandum from the law offices where she worked that referred to the Salmon and Dudnik decisions.
42She recalled phoning Tara Jackson and informing her of the following: her mother (the Respondent) does not discriminate against anyone on any grounds; her mother had only expressed an opinion about children's safety; she regarded her mother being told (by Jackson) that she may be liable for $25,000 as damages as a threat; and, the Salmon and Dudnik decisions related to "adult only" restrictions were under appeal and this fact should not have been withheld from her mother.
MISCELLANEOUS CORROBORATING WITNESSES
43Two witnesses for the Respondent, Anna Tuscka and Eva Stac, both testified that they are tenants at the Bloor Street West apartment building and that the vacant rental unit was in need of cleaning and repairs. Both witness were aware that Roman Lykosc and Roman Sokolicz were interested in renting an apartment in the Respondent's building; that these two men could not be contacted despite repeated efforts in early December 1990; and, that the keys to the apartment were given to them on the same day that they viewed it.
44Roman Sokolicz testified that it was possible that his "Tenancy Information Form" was completed December 15, 1990, the same day that he viewed the apartment. In his view, the apartment need major repairs to the floor, walls, baseboard and windows before anyone could move in. Mr. Sokolicz was unable to state what repairs he made in the apartment, indicating that "he could only speculate now" but definitely, the repairs done were "major".
ISSUE TO BE DETERMINED:
45Was the Complainant excluded from being considered as a prospective tenant because she and her husband Tom Leonard had a child, and was she thus discriminated against on the basis of family status?
DECISION
46In my view, the evidence of the Complainant, Janet Andrews, Tara Jackson, Peter Raposo and Tom Leonard had some minor inconsistencies, but was on the whole credible. Whatever her exact choice of words, the Respondent communicated to prospective tenants that her apartment building was cramped and its location was unsafe for children. I accept the Commission's evidence that the Respondent's references to the hazards of Bloor Street West and the lack of space for children to run and play was an attempt to discourage rental applications from prospective tenants with children. Where the Complainant's husband and the Complainant's sister, acting on her behalf, persisted despite the Respondent's overt discouragement, the Respondent simply ignored their expression of willingness to take the apartment and their efforts to conclude a rental agreement.
47I reject the excuse offered by the Respondent that the apartment was "reserved for the two men as they were first". This theory appears to be an afterthought. If the apartment was in fact so reserved, it is no credible that such a crucial fact was not mentioned to the Complainant or any of the prospective tenants, Janet Andrews, Peter Raposo and Tom Leonard or to the Commission's staff, Tara Jackson during multiple phone calls and viewing of the apartment between December 10 and 15, 1990. If there was a reservation or an established priority among prospective tenants, it strikes me as unusual that this information was not forthcoming until over a year after the Respondent completed the Commission's questionnaire and nearly two years after the events in issue.
48Furthermore, even if the "reservation" excuse had surfaced earlier, I would still find it implausible that the apartment was truly reserved for two total strangers (Lykosc and Socolicz) who according to the Respondent's testimony had not turned up as expected to view the apartment and thus she felt compelled to display the "Apartment for Rent" sign. As these men for whom the apartment was "reserved" had not been screened in any objective manner to determine their suitability as tenants, it is improbable that the apartment was reserved for them at the time it was offered for rental to the public at large. Once the "Apartment for Rent" sign was posted and members of the public were thereby invited to apply, it is not open to the landlord to discriminate directly or constructively among prospective tenants on any basis enumerated in the Code. Ignorance or disinterest in Ontario's law is not a defence to the prima facie case established by the Complainant.
49Finally, while there is no need for the Commission to prove that there was intentional discrimination, I am persuaded that the Respondent and her agent were conscious that the apartment building operated with a de facto "adults only" policy. The evidence before me established that Ms Traer, the agent and daughter of the Respondent, was aware of previous human rights decisions related to the issue in this case and mentioned these in her early communication with Tara Jackson of the Commission. I accept the Commission's evidence that in the initial stages of this complaint, Mrs. Traer's verbal response to the Commission, on behalf of the Respondent, was that so long as the Salmon and Dudnik decisions were under appeal, "adult only" occupancy restrictions remained lawful. I prefer the evidence of Ms Jackson of the Commission over that of Ms Traer where they differ regarding who referred to the Salmon and Dudnik cases in support of their positions. Ms Jackson was a relief intake worker while Ms Traer was an experienced law clerk at the time of their initial contact and Ms Traer, in defending her mother against the allegations from the Complainant, had an interest in establishing that the cases were under appeal.
50After considering all of the evidence, the Board concludes that Czeslawa (Tessy) Ptasznyk (Respondent) discriminated against Mary Andrews (Complainant) on the basis of family status when she denied her the right to equal treatment with respect to the occupancy of accommodation contrary to sections 2 and 9 of the Code.
REMEDY REQUESTED
51The Commission made the following request:
a)
an order that the Respondent cease from infringement of the right to occupancy of accommodation without regard to family status;
b)
an award of $1,500.00 as general damages payable to the Complainant;
c)
an award of special damages to the Complainant for the difference in the rents charged at Anglesea Boulevard and Bloor Street West for the months May 1991, to October 1992, both inclusive, taking into account any rent increases incurred;
d)
an award for interest on the general and special damages above.
52The Respondent requested that the complaint be dismissed in its entirety. In the alternative, if the complaint is upheld, damages awarded should take into account the Respondent's financial state. Finally, interest should not be awarded to the Complainant as the matter ought not to have proceeded to a hearing after the Respondent had made a reasonable settlement offer.
ORDER
53The Respondent shall comply with the following:
(1)
Cease the practice of denying occupancy of accommodation on the basis of family status;
(2)
Pay to the Complainant the sum of $1,000.00 for breach of the Complainant's right to equal treatment with respect to accommodation;
(3)
Reimburse the Complainant the rent deferential incurred (rental charges for alternate accommodation at Anglesea Boulevard less the rental charge for the Bloor St. W. apartment) for the period May 1991 to October 1992 inclusive.
(4)
Pay to the Complainant post judgment interest accrued on each of these sums of money in accordance with section 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended.
54I shall remain seized to deal with any matter arising from this Order should the parties fail to reach an agreement on the monies to be paid.
Dated at Toronto this 5th day of March, 1998
" Sri-Guggan Sri-Skanda-Rajah " ______________________________________
Sri-Guggan Sri-Skanda-Rajah, Vice-Chair