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 complaints by John French dated December 19, 1997; by Howard Sahsuvaroglu dated April 21, 1998; and by Liz Sahsuvaroglu dated April 21, 1998, alleging discrimination in accommodation on the basis of family status.
B E T W E E N:
John French; Howard Sahsuvaroglu; and Liz Sahsuvaroglu
Complainants
- and -
York Condominium Corporations Nos. 473 and 362; Del Property Management Inc.; Catherine Murdock; Helen Grant; and Patricia McKellar
Respondents
INTERIM DECISION
Adjudicator : Mary Anne McKellar
Board File No: BI-0169/170/171/172 -98
Decision No : 00-021-I
Board of Inquiry (Human Rights Code)
505 University Avenue
2nd Floor, Toronto ON M5G 2P3
Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743
TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168
INTRODUCTION
The Complainants, John French and Liz and Howard Sahsuvaroglu, were all parents of children under 16 years of age. They resided with their children in the same condominium community, which had a recreational facility attached to it. Each of them complains that the age-based restrictions on the use of that recreational facility discriminate against them on the basis of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). John French has named York Condominium Corporations Nos. 473 and 362 as Respondents to his complaint. Liz Sahsuvaroglu has named the two condominium corporations as well as Del Property Management Inc. and Catherine Murdock as Respondents, and Howard Sahsuvaroglu has named all of the foregoing plus Helen Grant and Patricia McKellar. In July, 1998, the Ontario Human Rights Commission (“the Commission”) referred the Complaints to the Board of Inquiry (“the Board”).
THE MOTION
By their Motion, the Respondents seek to strike certain portions of the Commission’s Statement of Facts and Issues on the grounds that they are “out of time, over generalized, and extremely prejudicial”.
THE DECISION AND ORDER
Paragraphs 8, 12, 15, 18, 22, 23 and 24 are struck from the Commission’s amended Statement of Facts and Issues.
The parties had all agreed that the Respondents would be directed to serve and file their Response to the Commission’s Statement of Facts and Issues within 25 days of the release of this decision. Having regard, however, to the holiday break, the board is extending this time. The Respondents are directed to serve and file their Response by January 26, 2001.
BACKGROUND
This hearing commenced by conference call held August 13, 1998. Pursuant to the Memorandum that issued as a result of that conference call, the Commission served and filed its Statement of Facts and Issues and provided documentary disclosure to the Respondents by September 21, 1998. Pursuant to the Memorandum, the Respondents were to serve and file their Response by October 16, 1998. They did not do so. During the Pre-Hearing Case Management Conference convened by conference call on November 26, 1998, the Respondents indicated that they could not respond to the Commission’s Statement of Facts and Issues until it was further particularized. The Commission agreed to respond to the Respondents’ request for particulars by January 11, 1998. If those particulars were satisfactory to the Respondents, they agreed to serve and file their Response by January 26, 1998. If not, they were to serve and file a Notice of Motion and written submissions in support of a request for further and better particulars by January 26, 1999. A further Pre-Hearing Case Management Conference Call was scheduled for January 26, 1999.
On January 11, 1999, the Commission wrote to the Respondents as follows: “Further to the Pre-Hearing Conference Call of November 26, 1998, please find attached the Commission’s additional pleadings in the above-noted matter”.
On January 25, 1999, the Respondents served and filed their Notice of Motion. There were no written submissions filed in support of the Notice of Motion. During the conference call the following day, however, a schedule for written submissions was set up. This Motion is being decided on the basis of those submissions.
THE COMPLAINTS
The only allegations of Code contraventions in the complaints of Liz and Howard Sahsuvaroglu relate to the effects of the rules respecting use of the recreational facilities and the actions of the named personal respondents in enforcing those rules. All of the personal respondents appear to be employees or agents of the named corporate respondents. The French complaint names no personal respondents. The bulk of the factual allegations in this complaint relate to the history of the rules respecting the recreational facilities and the occupancy of residential units by children. The one exception is paragraph 7:
Beginning around the end of May, 1985, vigilant residents chastised my wife for bringing our daughter into the building through the lobby, demanding that we enter via the garbage room entrance.
THE COMMISSION’S PLEADINGS
The Commission’s Statement of Facts and Issues, dated September 21, 1998, states:
The Commission relies on the facts set out in the complaints of John French, Liz Sahsuvaroglu and Howard Sahsuvaroglu, Complaint File Nos. TE-001168, TE-001709, TE-001703 and TE-001704.
The Commission further relies upon facts with respect to the harassment of John French and his wife by occupants of the condominium building in which they lived, the particulars of which will be provided to the Respondents at a later date.
The Commission’s additional pleadings, dated January 11, 1999, contain the following paragraphs:
While Frances French was pregnant, she experienced hostility from other residents of YCC #473.
In or around May 1985, residents chastised Frances French for bringing her daughter into the condominium building through the lobby, demanding that she enter through the garbage room entrance with her daughter.
On or about May 2, 1994, John and Frances French spoke to B. Bergstein about the rules in regard to children. Bergstein stated that the Board can make any rule it wants and “we don’t discriminate against families, we let you live here don’t we?”
The Frenches began to have difficulties receiving deliveries, On or about August 20, 1994, Frances French was advised by the guard on duty that there would be no problem allowing entry of a delivery. Shortly thereafter the delivery was turned away.
The Frenches were also subjected to other forms of differential treatment and a poisoned environment. For example, in or around January, 1995, Frances French took her daughter swimming between the 5:00 p.m. and 6:00 p.m. and was told by a resident that she should take her daughter to a community centre to swim.
On or about April 17, 1995, John French observed Frances French being unnecessarily crowded and bumped by another resident while the Frenches were using the pool.
In or around June, 1996, Elizabeth French reported to her parents that she experienced hostility from other residents while exiting the elevator.
In or around June, 1996, John French and his family sold their condominium unit in YCC #473 and moved elsewhere. The Frenches moved, in part, as a result of the discrimination they faced as a family residing at YCC #473, including the continued restrictions placed on their use of the recreational facilities.
In the summer of 1994, both Mary Gaine and Catherine Murdock spoke to Liz Sahsuvaroglu about her use of a small inflatable pool for her children in the pool area. She was asked to remove it and other residents subjected her to negative comments.
At meetings of the Respondent Condominium Corporations, the Sahsuvaroglus attempted to have their concerns addressed regarding the restrictions placed on the use of the recreation facilities by families with children. When they did so they were often met with hostile comments from others such as a suggestion that the rules should be made difficult for families with children so that they will leave.
ANALYSIS
The Respondents take the position that the Complaints as originally framed raise allegations with respect to the discriminatory impact on families with young children of age-based restrictions on the use of recreational facilities. The impugned paragraphs of the Commission’s amended Statement of Facts and Issues reproduced above, however, raise allegations of direct discrimination in the form of hostile comments and behaviour engaged in by unidentified residents of the condominium community. They submit that the Commission’s failure to make these allegations in a timely way and its failure to specify the nature of the hostile behaviour or comments and the identity of the persons alleged to have engaged in them is prejudicial to them, and amounts to an allegation of the existence of a “poisoned atmosphere” against families, for which the Commission seeks to hold the Respondents responsible, or allegations of direct discrimination against persons who are not parties. The Respondents note that the condominium community in question comprises in excess of 500 units, some of which were owner-occupied and some of which were rented during the relevant time period, making it extremely difficult for them to ascertain the identity of the persons alleged to have been involved.
The Commission takes the position that the impugned paragraphs form part of the continuum of the facts of the Complaints, and that they amplify or particularize allegations already contained therein. It characterizes the Respondents’ Motion to Strike as an inappropriate attempt to restrict the scope of evidence at the outset of the hearing. With respect to the Respondents’ point about the Commission’s failure to identify individuals alleged to have engaged in a course of hostile behaviour or comment, the Commission submits:
. . . the Commission has not held back the names of individuals referred to in its pleadings. The Commision has specified names where it is able to do so. The Personal Respondents are identified where the facts relate to them. It is submitted that the fact that a complainant does not know the name of an individual with whom he or she had a discriminatory interaction does not render the fact of the interaction irrelevant to a complaint. The Respondents suggest that they are prejudiced by the absence of names and the passage of time. They have provided no evidence of actual prejudice. It is not clear that the passage of time has caused any prejudice with respect to this particular information. These concerns raised by the Respondents can be dealt with in the course of the hearing. The Respondents will have the opportunity to cross-examine and make submissions with respect to the weight to be given to certain evidence.
In their Reply Submissions, the Respondents note that the nature of the discrimination alleged in the amended Statement of Facts and Issues is different from that set out in the Complaints, such that the allegations cannot form part of the same continuum of facts. They also note:
The Commission says it is not obliged to provide particulars with respect to the new allegations, because the allegations are against persons, not against a “party”. But the Commission cannot have it both ways. If the new allegations are not meant to reflect on the Respondents, that is if the Respondents are not meant to be held responsible for the conduct of its residents, vis a vis, the Frenches, then the allegations are irrelevant. The only reason the Commission raises these allegations is to attempt to create a “poisoned atmosphere” within which the Rules governing the use of the recreation center will be examined. That “poisoned atmosphere” is only created if the Respondents are responsible for the actions or statements of the residents. The Commission, in making these allegations, clearly intends to attribute responsibility to the condominium corporation. If the Respondents are being held responsible for alleged impropriety of conduct, then they are entitled to all particulars.
The Board does not agree that the nature of the discrimination alleged in the additional pleadings is so different in nature and removed from the allegations in the Complaints that this constitutes a sufficient basis for striking the impugned paragraphs. Although the allegations focus on the impact of the recreational restrictions, reference is also made to other condominium documents allegedly expressing a preference to maintain the community as an exclusively adult one. The scope of the Complaints is thus not strictly confined to the impact of the age-based restrictions on the use of the recreational facilities, but appears to encompass what might be more colloquially referred to as allegations of the Respondents’ negative attitude towards the presence of families in the condominium community. Furthermore, the Board is hesitant to adopt an analysis dependent on perpetuating the distinction between direct and indirect discrimination, having regard to the Supreme Court of Canada’s pronouncements on that topic in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.), 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, and in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868.
The Board does, however, agree with the Respondents’ contention that the allegations of hostile behaviour on the part of persons other than the Respondents are not relevant unless the Respondents can somehow be held accountable for them. The Respondents can only be held responsible for a poisoned environment if they knew or ought to have known that it existed. For the most part, there is nothing in the impugned paragraphs to impute the named Respondents with knowledge of the alleged discriminatory behaviour of other condominium residents. The Board is of the view that Paragraphs 8, 12, 15, 18, 22, 23, and 24 should be struck. The basis on which they are struck, however, is not that initially asserted by the Respondents in their Notice of Motion, the ground of extreme prejudice and untimeliness, but rather that they raise no prima facie case as against the Respondents.
With respect to Paragraph 33 and 39, the allegations appear to be that the resident comments were made in a forum in which the Personal Respondents or officers or employees of the Corporate Respondents were present. The Board declines to strike those paragraphs. There is no evidentiary disadvantage or prejudice to the Respondents in the case of the Paragraph 33 allegations because Catherine Murdock and Mary Gaine may testify and provide their recollection of whether the alleged incident occurred. Similarly, in the case of paragraph 39, the Board understands that the incidents alleged may be documented in minutes of meetings, which will indicate who attended on behalf of the Respondents, and those persons may testify with respect to their recollection of the matters discussed. The allegations contained in these paragraphs appear referable to that aspect of the Complaints asserting the Respondents’ negative attitude towards the presence of families in the condominium community.
Paragraph 25 suggests that the restrictions on the use of the recreational facilities was only one aspect of “the discrimination [the Frenches] faced as a family residing at YCC #473”. The only basis for striking this paragraph would appear to be that it alleges a broader range of discriminatory conduct than that represented by the age-based restrictions in the rules respecting use of the recreational facility. As noted above, the Board does not view the allegations set out in the Complaints as confined to a consideration of the recreational facility rules. Although those rules are certainly the focus of the Complaints, there are allegations with respect to attempts to preclude children from residing in the condominium community. Paragraph 25 may be referable to those allegations. The Board therefore declines to strike Paragraph 25.
Finally, the Board notes that its refusal to strike Paragraphs 25, 33, and 39 does not preclude the Respondents from making whatever objections would otherwise be available to them in respect of the scope of any evidence sought to be adduced in support of the allegations contained in those paragraphs.
Dated at Toronto, Ontario, this 22nd day of December, 2000.
“Mary Anne McKellar”
Mary Anne McKellar, Vice-Chair