HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
COMMISSION
and
Elma Watson and Micheline Watson
COMPLAINANTS
A N D:
Adriano Antunes and Arminda Antunes
RESPONDENTS
DECISION
Adjudicator: Sri-Guggan Sri-Skanda-Rajah
Date: April 8, 1998
Decision No.: 98-009 (Ont. Bd.Inq.)
Counsel for the Commission: Raj Dhir, Student-at-Law
Counsel for the Complainant: Elizabeth Hall
Counsel for the Respondent: Absent and unrepresented
INTRODUCTION:
Elma Watson and Micheline Watson, the Complainants, are adult black women who are related to each other as family. Mrs. Elma Watson is the natural mother of Ms Micheline Watson. The Board will refer to them throughout this decision as mother and daughter respectively.
The daughter sought to rent an apartment and her mother agreed to assist in her search by receiving messages, viewing apartments for rent and contracting with the prospective landlord on the daughter's behalf. The mother arranged an appointment by phone and attended to view the apartment with the prospective landlord. A woman reluctantly showed her the apartment. The next day, the woman who showed the apartment answered the mother's phone inquiry and informed her that the apartment was rented. Subsequently, the mother asked someone else to phone to enquire whether the apartment was still available for rent. This caller was informed by a woman that it was available. The mother and daughter now allege that the woman who showed the apartment to the mother was the prospective landlord and that she declined to rent them the apartment because of their race, contrary to the Human Rights Code. R.S.0. 1990, c. H.19 (the Code).
The Complainants allege infringements of their rights to: equal treatment with respect to accommodation because of race contrary to subsection 2(1) and section 9 of the Code; contract on equal terms contrary to sections 3 and 9 of the Code; and, freedom from discrimination because of relationship. or association with a person identified by a prohibited ground of discrimination contrary to section 12 of the Code.
ISSUE:
- Whether there was, in the circumstances of this case, a denial of an opportunity to rent the apartment to the daughter, through her mother who acted on her behalf, and whether that denial constituted an infringement of the right to occupy accommodation, the right to contract and freedom to associate without discrimination on the basis of race, contrary to the Code.
EX PARTE HEARING
- All parties and persons whose rights might be determined in a proceeding before the Board are entitled to notice in accordance with the Board's Rules of Practice and the Statutory Powers and Procedures Act, R.S.O. 1990 c. S.22 as amended. These complaints were referred to the Board of Inquiry (the Board) by the Human Rights Commission (the Commission) by letter dated February 3, 1997 pursuant to s.36(1) of the Code. The following outlines steps taken by the Board and Commission to give notice to the Respondents.
Attempts at service on the Respondents by the Board:
In accordance with the Board's usual practice, a notice of hearing dated February 19, 1997 was sent to the Respondents' last known residential address in North York by courier. The notice indicated that a telephone conference call was scheduled for March 14, 1997 to commence the hearing. That notice and a copy addressed to the Respondents at the location of the rental apartment on Springmount Avenue in Toronto, were returned by the courier service with the notation "no response from the receiver - several attempts" and "bad address" respectively. In light of the difficulty in giving notice, the Board adjourned the scheduled telephone conference call to allow for other attempts at service.
By letter dated April 15, 1997, the Deputy Registrar of the Board again attempted to courier notice of a conference call scheduled for April 25, 1997, in an unmarked envelope, to the Respondents residence in North York. This notice was returned to the Board with the notation "no response". A correction to the notice (April 25 changed to April 24), sent on April 16 in a similar manner, was also returned with a notation "no response from the receiver".
At the commencement of the conference call on April 24, 1997, the conference call operator informed the Board that she spoke to Arminda Antunes, who identified herself, and stated that she was not participating in the call. Ms Antunes further stated that she was sick and then hung-up. On April 24, 1997, the conference call proceeded in the absence of the Respondents and hearing dates for June 10 – 12 were set.
On May 5, 1997 the Deputy Registrar, sent a notice of the June hearing dates to the Respondents' North York address by regular mail in an unmarked envelope. This notice was not returned to the Board. In any event, the Board deems this mailing as proper notice of hearing pursuant to Rule 5 of its Rules of Practice.
Attempts at service on the Respondents by the Commission:
Following the March 14th teleconference call, the Commission forwarded to the Board an affidavit of it's law clerk, Ms Mollie Kermany, sworn on March 18, 1997, setting out in detail the service of various Commission documents on the Respondents at their residence in North York on March 11, 1997. The service was effected by leaving the package of documents at the doorsteps.
By letter dated May 27, 1997, the Commission filed with the Board an affidavit of service indicating that Ms Mollie Kermany served Mr. Adriano Antunes personally on May 23, 1997, with a document entitled "Pleadings filed by the Ontario Human Rights Commission pursuant to Rule 35 of the Boards [sic] of Inquiry Rules of Practice".
Conclusion regarding ex parte hearing
- The Board finds that the independent efforts of the Registrar and the Commission resulted in actual service of notice on the Respondents at their place of residence in North York. Mrs. Antunes identified herself to the conference call operator who phoned her as part of the Board's usual conference call process and the Commission's law clerk, Ms Kermany, personally met with Mr. Antunes in his home before the hearing of evidence commenced and after service by ordinary mail was effected by the Registrar. The Board rules that the Commission and the Complainants are entitled to proceed in the absence of the Respondents.
EVIDENCE OF THE COMMISSION:
Micheline Watson's testimony:
- The Complainant daughter, Micheline Watson, testified that in August 1993 she was looking for accommodation to rent. She responded to an advertisement in the Renters Guide that read as follows:
"ST. CLAIR-DUFFERIN. Bright, clean ground level, bach. bsmt. With walk out to yard, f-pl., close to all amens. $500. incl. Call 787-2983 after 4 pm. Also 2 bdrm. Avail. $770."
She called the phone number published in the ad and left a message with her name and telephone number. She called back later and spoke to a woman who spoke in English with a slight accent. The woman described the bachelor apartment and stated that she was making appointments for viewing. The Complainant advised the woman that her mother would view the apartment and that she, the Complainant, would take the apartment if her mother liked it. The daughter testified that she had confidence in her mother's judgment, and that she had specifically authorised her mother to rent an apartment on her behalf.
The daughter testified that her mother viewed the apartment and informed her that it was nice and that she liked it, and had informed the woman that her daughter would take it. She was informed by her mother that when she had called the woman back the next morning she was told that the apartment was rented.
The daughter felt degraded by the experience of dealing with the woman who was apparently in charge of renting the apartment. She felt let-down and disappointed. Her mother took steps to follow-up on their suspicions about why she was not offered the apartment. The daughter testified that she continued to look for an apartment of her own for a few weeks and then gave-up. She ended up shuttling between her parent's and her brother's homes for about one year before she was able to find the accommodation that she rents now.
Elma Watson's testimony:
Elma Watson testified that while her daughter, Micheline, was looking for an apartment, she assisted her by carrying out her instructions. With respect to the instant complaint, she said that her daughter called her and gave her the location and advised her that a woman would be calling her to make an appointment. The woman called and asked her to attend for 7:00 pm and so she went to the address on Springmount Avenue, sometime in early August 1993.
On her arrival at the apartment building, she observed a woman watering plants outside. She testified that the woman did not approach her or acknowledge her presence. She waited for a while, expecting the landlord to arrive to show her the apartment. After a few minutes of waiting, she spoke to the woman who was watering the plants and informed her that she had an appointment with the landlord to see an apartment. The woman responded by stating that she had not called her (the mother) to set up an appointment and that she knew nothing about a vacant apartment. After more time passed, the mother decided to sit down on the steps to building to wait for the landlord. .After a while, the woman watering the plants went to speak with a man who sat in the doorway of the apartment building. The woman then went to a car on the street, retrieved some keys and told the mother that she would show her the apartment. This she did.
After viewing the bachelor apartment, the mother advised the woman that she would take the apartment (for Micheline). She testified that the woman provided no application form to complete nor did she ask any questions about her or her daughter's finances or rental history. She testified that she attempted to give the woman her name and telephone number written on a piece of masking tape. The woman declined to take the tape with the information from her so she stuck it on the staircase railings (banister).
The mother testified that the voice of the woman who showed the apartment sounded like that of the person who had phoned to set up the viewing appointment. The woman was distinctly unresponsive to her expression of interest in renting the apartment. There was, however, no disagreeable exchanges or disputes between them over the period that she attended to view the apartment. In response to a clarifying question from the Board, the mother stated that while she was viewing the apartment there was no real conversation between the woman and her and that the woman made no response at all when she stated that she would take the place.
On the day following the viewing, the mother telephoned again about the bachelor apartment. A woman answered and informed her that it had been rented. She testified that she was suspicious of this answer and therefore asked her landlady, Anna, to telephone to see whether the apartment was in fact rented. She testified that she made this request because she suspected that the woman would not rent the apartment to her because she and her daughter are black women.
The mother testified that when her landlady, Anna, telephoned later the same day, the woman who answered the call told her that the bachelor apartment was still available for rent. The mother testified that when she called again, the morning after Anna's phone call, she was informed by the woman that the apartment was rented and that she did not know the owner of the premises. The mother testified that she told the woman "if you are showing it you must know the owner". The woman responded further by saying the apartment was already rented. The mother testified that at this point she asked the woman if she had a problem with her being a black woman. The woman gave no response, then hung-up the phone.
The mother testified that she discussed the events of the three days with her daughter who told her about the Centre for Equality Rights in Accommodation (C.E.R.A.). The mother telephoned C.E.R.A. and spoke with Mr. Russell Armstrong about the events, her suspicions that she was denied an opportunity to rent because of her race and she passed on the telephone number in the Renter's Guide to him.
Testifying about her own feelings as a result of this experience, the mother stated that she felt rejected, not really worthy, and that she felt hurt that the woman would not answer her question. She testified that as a black Canadian she felt disappointed and disgusted. She testified that she observed that her daughter Micheline was angered and devastated by the experience.
Anna Conto's testimony:
Anna Conto was the mother's friend and landlady in August 1993. Ms Conto is of Italian background and speaks English in an unaccented manner. She recalled the time when Elma Watson visited and asked her to "check-up" on an apartment. She said that Elma appeared upset and sad at the time she made this request.
She testified that she called the telephone number that she was given by the mother and that when she enquired about the bachelor apartment, a woman informed her that it was available. She made an appointment to view the apartment but did not go to view it. She stated that the woman had an accent but her entire conversation with the woman was in English.
Russell Armstrong's testimony:
Russell Armstrong worked at C.E.R.A. when he was contacted by the mother. He made notes of his conversation with her and of his investigation on her behalf. He testified that since this matter had taken place a long time ago he could not recall it from memory. He had notes pertaining to this matter and he requested permission to review them to aid his testimony. The Board allowed him to review his notes.
He testified that he telephoned the number pertaining to the apartment that he had been given by Elma Watson and a woman answered. The woman said the apartment was "available" and confirmed that it was a bachelor apartment. He testified that after he explained that he was from C.E.R.A., the woman suddenly claimed that she was the superintendent and that the apartment was rented.
Documentary evidence:
- The Commission filed an affidavit from Mollie Kermany dated June 10, 1997. The affidavit had land registry searches attached relating to the rental property at Springmount Avenue and to the Respondents' residence in North York. The searches identify the two Respondents as the joint owners of both properties. Another attached document shows that the telephone number listed for the Respondents in the phone directory at their North York address is the same number that was listed in the advertisement in the Renter's Guide.
EVIDENCE OF THE RESPONDENTS:
- The Respondents did not attend and did not submit any evidence to the Board for consideration.
SUBMISSIONS:
The Commission and the Complainants submitted that the Board make findings that each allegation pertaining to each of the complaints had been established by the evidence received at this hearing.
Further, the Commission submitted that once the Commission and Complainants establish a prima facie case, the onus then shifts to the Respondents to rebut it. A claim of discrimination must be proved on a balance of probability. In cases involving offers to the public at large, by analogy to employment cases, the Commission urged that I consider the following:
- the complainant belongs to a group identified by the Code as subjects of discrimination;
- the complainant applied and was qualified for what she or he sought;
- although qualified, the complainant was rejected; and
- the respondent continued to seek out applicants.
The Complainants concurred in the Commission's submissions and added that it was appropriate for the Board to draw an adverse inference from the Respondents' failure to appear and participate in the hearing, declining to respond when questioned by the mother about race being a factor in not accepting her offer to rent and attempting to mislead C.E.R.A. by claiming that the apartment had been rented only a few seconds after admitting that it was available for rent.
In addition, the Complainants' counsel provided the Board with two decisions dealing with similar denial of rental opportunities to prospective tenants. In Reese v. London Realty & Rentals Ltd. and Davies and Clement (1986), 1986 CanLII 6516 (ON HRT), 7 C.H.R.R. D/3587 (Ont. Bd. of Inquiry), the adjudicator held that Reese was discriminated against when she was refused the rental of a house because she is black. The Board found that the Corporation through its agent Clement, intentionally discriminated against Reese because of her race. The Corporation had three houses available for rent at the time Reese made telephone enquiries. When Reese attended in person, Clement informed her none of the premises were available for rent when in fact they were. Similarly, in Baldwin v. Soobiah (1983), 1983 CanLII 4722 (ON HRT), 5 C.H.R.R. D/1890 (Ont. Bd. of Inquiry), the adjudicator found that Baldwin was discriminated against because of his West Indian ancestry when he was refused rental of an apartment, advertised for rent at $300 per month, by Soobiah. The Board accepted Baldwin's evidence that when he approached Soobiah to rent the apartment, Soobiah informed him that the rent was $350 and later, that the apartment had been rented. On the other hand, Soobiah informed prospective white tenants that the apartment was available and the rent was $300 per month.
REMEDY REQUESTED
The Commission and the Complainants requested general damages for the breach of the Complainants' intrinsic rights under the Code and for the mental anguish of the Complainants. The parties urged the Board to consider that the Complainants have not had the satisfaction of hearing the Respondents' explanation of why the apartment was not rented to them. In these circumstances, the parties urged that the quantum of damages awarded be significant.
Finally, the Commission urged the Board to provide a public policy remedy as follows:
(1) That the Respondents prepare and use a fair non discriminatory rental application form to deal with prospective tenants at the rental premises at Springmount Avenue;
(2) That the Respondents submit applications obtained from prospective tenants to the Commission for monitoring for a period of three years from the date of this Board's order.
DECISION:
The Board accepts the Commission's submissions regarding the onus and standard of proof in this case. The Board is satisfied that a prima facie case was demonstrated through the evidence of the Commission's and the Complainants' witnesses. The Respondents have opted not to participate in this hearing and have provided no evidence to rebut the claims made against them. On the totality of the evidence presented, the Board finds that the complaints have been made out on a balance of probabilities. The Board found that the evidence of the witnesses Anna Conto, Russell Armstrong, and Mollie Kermany was given in a straightforward manner and without embellishments. The Board also found the two Complainants credible in their consistent, detailed and apparently sincere recounting of their experiences with the female Respondent.
To support the finding in favour of the Complainants, the Board makes the following specific findings of fact from inferences drawn from the uncontested viva voce and documentary evidence placed before the Board:
- at all relevant times, the Respondent Arminda Antunes acted in her personal capacity as owner and landlord of the apartment at Springmount Avenue and also as apparent or ostensible agent for her spouse Adriano Antunes with whom she resides and co-owns the Springmount Avenue property and their matrimonial residence in North York;
- on a balance of probabilities, the Respondent Arminda Antunes is the person who reluctantly showed the apartment and responded to the phone enquiries of the Complainants, Ms. Conto and Mr. Russet as she resides at the North York address that, according to the phone directory, corresponds to the phone number listed in the rental advertisement; and,
- the Complainant mother suffered emotional harm or mental anguish from her direct dealings with the Respondent Arminda Antunes while the Complainant daughter experienced these effects as well as a significant postponement of her plans to live independently in her own apartment.
- The Board makes the following findings of breaches of the Code:
- the Complainant Micheline Watson's rights to be free from discrimination as protected by sections 2(1), 3 and 12 were infringed by the Respondents who declined to take steps to rent the available apartment to her and who misled her mother (agent) regarding the availability of the apartment;
- the Complainant Elma Watson's rights to be free from discrimination as protected by section 3 and 12 were infringed by the Respondents on the basis of race at the time she (Watson) attended and was very reluctantly shown the apartment, and subsequently when she followed up to verify whether her interest in renting for her daughter was considered by the landlord,
- The Respondent Arminda Antunes, in her personal capacity and as apparent agent for Adriano Antunes, discriminated against both Complainants with respect to occupancy of accommodation, contracting on equal terms and by association or relationship contrary to subsection 2(1), sections 3 and 12; and,
- Adriano Antunes is jointly and severally liable for the breaches of the Code effected by his apparent agent.
ORDER:
- Pursuant to s.41(1) of the Code, the Board orders that the Respondents, jointly and severally:
(1) Pay to the Complainant Micheline Watson the sum of $1,000 as general damages for infringement of her rights under the Code;
(2) Pay to the Complainant Elma Watson the sum of $1,500 as general damages for infringement of her rights under the Code;
(3) Pay to the Complainant Micheline Watson the sum of $1,000 as damages for mental anguish suffered by reason of the discriminatory treatment;
(4) Pay to the Complainant Elma Watson the sum of $1,000 as damages for mental anguish suffered by reason of the discriminatory treatment;
(5) Pre-and post-judgment interest shall be paid to both Complainants on the foregoing amounts in accordance with section 127 of the Courts of Justice Act; and,
(6) The Respondents shall, within three months of the date of this decision, furnish the Commission with a written policy and a non-discriminatory tenant application form for the Commission's approval and the Respondents' use as landlord.
Dated at Toronto this 8th day of April, 1998:
Sri-Guggan Sri-Skanda-Rajah Adjudicator, Board of Inquiry