HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Maria Cunanan
Complainant
-and-
Boolean Developments Limited and Edmond Lee
Respondents
DECISION
Adjudicator: Won J. Kim
Board File No.: BI-0462-02
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416)314-2379 / 1-800-424-1168
APPEARANCES
Ontario Human Rights Commission ) Brian Smith, Counsel
Maria Cunanan, Complainant ) On her own behalf
Boolean Developments Limited ) Mr. Lee on his and the
and Edmond Lee, Respondents ) Corporation’s behalf
INTRODUCTION
1This proceeding arises out of the Complainant’s search for rental accommodations at 30 Godstone Road, Toronto, Ontario. The Commission alleges that Maria Cunanan has been subjected to discrimination in the occupancy of accommodation on the basis of family status and on the basis of her relationship or association with persons identified by the prohibited ground of age, contrary to subsection 2(1) and section 12 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). As well, the Commission alleges that Ms. Cunanan has been subjected to reprisal, contrary to section 8 of the Code.
ISSUES
2In this decision, the Tribunal deals with the following issues:
Was Ms. Cunanan subjected to discrimination on the basis of her family status by Edmond Lee and Boolean Developments Limited (“Boolean”), contrary to subsection 2(1) of the Code?
Was Ms. Cunanan subjected to discrimination on the basis of her relationship or association with her teenaged children, contrary to subsection 2(1) and section 12 of the Code?
Was Ms. Cunanan subjected to reprisal by Mr. Lee and Boolean, contrary to section 8 of the Code?
If so, what is the appropriate remedy?
PRELIMINARY MATTERS
3The Respondents were not represented by counsel at the hearing. I asked Mr. Lee if he wished counsel for either of the Respondents but he stated that he was prepared and wished to proceed on his and the Corporate Respondent’s behalf. Mr. Smith, on behalf of the Commission, and the Complainant were content to proceed. Although there were some instances where the evidence of Mr. Lee and Mr. Meakes was intermixed with submissions which might more appropriately be characterized as being argument, I am satisfied that the hearing was fair, balanced and comprehensive with regard to the ability of the parties to present their case.
4At the conclusion of the hearing, I invited both parties to file written submissions, if desired. Mr. Smith, on behalf of the Commission, filed detailed closing submissions while Mr. Lee did not. On January 16, 2003, Mr. Lee wrote to the Commission stating that the Respondents did not receive the Commission’s written submissions until January 9, 2003. Mr. Lee stated that the submissions were late and that the Commission’s counsel, Mr. Smith, failed to act as a neutral party at the hearing. I have carefully considered the Respondents’ objections and the written submissions of the Commission along with my detailed notes made during the hearing. I do not believe that the Respondents have been prejudiced in any way by my receipt of the written submissions.
WITNESSES
5The Tribunal heard from the Complainant and Mr. John Fraser of the Centre for Equality Rights in Accommodation (“CERA”). Mr. Lee and Mr. Meakes appeared on behalf of the Respondents at the hearing.
FACTS
Complainant’s Evidence
6The Complainant, Ms. Cunanan, is a 54-year old single mother of three sons: Andre Michel (born September 16, 1978); Ivan Ross (born October 13, 1982); and Gunther Kristoff (born July 1, 1984). From 1996 until April 2000, Ms. Cunanan and her three children lived in a three-bedroom apartment at 4 Mascot Place, North York, Ontario. Ms. Cunanan and her eldest son each had their own bedroom, while the younger sons had bunkbeds in the third bedroom.
7Although Ms. Cunanan and her family were comfortable in their living arrangements at 4 Mascot Place, Ms. Cunanan expressed interest in May 1998 in moving to the high-rise apartment building at 30 Godstone Road, North York, Ontario.
8Ms. Cunanan testified that she was interested in moving to 30 Godstone Road because:
she had a close friend, Ms. Ophelia Briones, who lived in the building;
she had observed the building when visiting Ms. Briones, and considered it to be clean and nice;
the building was close to Fairview Mall, and was within walking distance of a school that her three sons could attend;
she understood from speaking with Ms. Briones that the rent would be cheaper than at 4 Mascot Place, and that utilities would be included; and
Ms. Briones had told her that apartments were available for rent in the building.
May 11, 1998
9On May 11, 1998, Ms. Cunanan met with Mr. Matthew Meakes, Superintendent at 30 Godstone Road who advised her that there were several units available in the building. Ms. Cunanan made a specific request to Mr. Meakes for and was shown an available three-bedroom apartment in 30 Godstone Road. The apartment had a kitchen, living room and two full bathrooms (one of which was attached to the master bedroom), and was approximately the same size as the three-bedroom unit at 4 Mascot Place but included hydro in the rent and was approximately $100 cheaper per month. Ms. Cunanan testified that she was very excited about taking the apartment, and had no concerns that the apartment would be too small or otherwise inappropriate for her and her three teenaged children.
10Ms. Cunanan filled out a tenancy application form on May 11, 1998, and submitted it to Mr. Lee. It is Ms. Cunanan’s evidence that she filled out the application completely, which asked her, among other things, for information regarding names and ages of all intended occupants. Mr. Lee has conceded that Ms. Cunanan’s form would have stated the ages of her children if she had filled it out completely.
11Ms. Cunanan testified that Mr. Lee told her he would get back to her within four days. Mr. Lee agreed that his normal practice is to make decisions regarding applications for tenancy in a quick fashion.
Discussion with Matthew Meakes
12Ms. Cunanan testified that approximately one week after she submitted her tenancy application to Mr. Lee, she returned to 30 Godstone Road to visit Ms. Briones. During this visit, Ms. Cunanan and Ms. Briones encountered Mr. Meakes, and Ms. Cunanan asked whether he had information regarding the status of her tenancy application.
13Ms. Cunanan testified that Mr. Meakes responded by saying that he did not know about the status of her application, but that her application would probably be rejected because she had three teenaged children. Ms. Cunanan further testified that she was shocked by Mr. Meakes’s comment, and that she responded by stating that she did not see why having teenagers would hurt her chances of getting the apartment, as her kids were “good kids”.
June 23 and 25, 1998
14Ms. Cunanan testified that on or about June 23, 1998, she went to see Mr. Lee in his office to inquire why she had still not heard anything with respect to her tenancy application, despite having submitted it on May 11, 1998: nearly six weeks before.
15Ms. Cunanan’s evidence was that:
Mr. Lee told Ms. Cunanan that he could not find her application;
Ms. Cunanan offered to simply fill out a new application form;
Mr. Lee refused to permit Ms. Cunanan to fill out a new application; and,
Ms. Cunanan advised Mr. Lee that she would have to “go see a lawyer” regarding his refusal to let her fill out a new application. She also advised that she would return later in the week to see if he had found her application.
16I have no doubt that Ms. Cunanan’s earlier conversation with Mr. Meakes affected the tone and tenor of the conversation she had had with Mr. Lee. When Mr. Lee could not find her application nor let her fill out a new application, her suspicions that she was being discriminated against because of her family composition were confirmed in her mind. Her statement that she would “go see a lawyer” reflected her apprehension of perceived bias.
17Ms. Cunanan went back to see Mr. Lee in his office on June 25, 1998 to inquire again about the status of her application. It is Ms. Cunanan’s evidence that:
Mr. Lee told Ms. Cunanan that he still had not found her application;
Ms. Cunanan again offered to simply fill out a new application form, and
Mr. Lee still refused to permit Ms. Cunanan to fill out a new application, asking “where is your lawyer?”
18When Ms. Cunanan learned that her application could not be found and was denied the opportunity to complete a second application, she advised Mr. Lee that she would have to seek legal assistance. It was her evidence that Mr. Lee indicated that Ms. Cunanan’s application was put on “hold” and would not be processed until “she came back with her lawyer”.
John Fraser and CERA
19After Mr. Lee again refused to permit her to complete a new application form on June 25, 1998, Ms. Cunanan contacted CERA on June 25 or 26, 1998, and explained her situation to Mr. John Fraser, the Program Co-ordinator. Mr. Fraser’s responsibilities at CERA included speaking with persons who felt they had been discriminated against with respect to housing, acting as an advocate for such persons in attempt to quickly resolve their disputes, and/or assisting those persons with the filing of human rights complaints, if appropriate.
20Mr. Fraser testified that he telephoned Mr. Lee on June 26, 1998, and explained that: (i) Ms. Cunanan was concerned that Mr. Lee had refused to let her reapply because of the composition of her family (single mother with three teenaged children); and (ii) such a refusal would be contrary to the provisions of the Code. Mr. Fraser then tried to convince Mr. Lee to let Ms. Cunanan reapply for the apartment, without success. Mr. Fraser testified that he believed that Mr. Lee understood the information provided on June 26, 1998, but that Mr. Lee did not appear to be interested in talking to him about it.
21Mr. Fraser testified that at the end of the telephone conversation, Mr. Lee requested that Mr. Fraser send him a letter outlining the substance of their discussion concerning the Code. As a result, Mr. Fraser sent Mr. Lee a letter dated July 3, 1998, with a copy to Ms. Cunanan. In his letter, Mr. Fraser wrote that, among other things: (i) Ms. Cunanan was concerned that Mr. Lee had denied her the opportunity to reapply for the apartment because of her teenaged children; (ii) such a denial would constitute discrimination on the basis of family status and age und the Code; and (iii) all Ms. Cunanan wanted was to reapply for the apartment and have her application considered without discrimination.
22Mr. Fraser stated that he sent the letter to Mr. Lee by mail, since Mr. Lee stated that he did not have a fax machine at the time. At the hearing, Mr. Lee denied having received Mr. Fraser’s letter dated July 3, 1998. I will comment later in this Decision about the letter not being received by Mr. Lee.
23I accept Mr. Fraser’s evidence without reservations. His testimony was clear, candid and balanced. I appreciated his efforts to be fair to Mr. Lee regarding their conversation as well as the possibility that the letter had not reached Mr. Lee.
24Neither Ms. Cunanan nor Mr. Fraser heard anything further from Mr. Lee after June 26, 1998. As a result, Ms. Cunanan filed the Complaint in this matter on October 5, 1998, with Mr. Fraser’s assistance.
Respondents’ Evidence
25Boolean owns the apartment building at 30 Godstone Road in what was the former City of North York, now part of the City of Toronto. Mr. Lee is the sole officer and director of Boolean and acts as the property manager for 30 Godstone Road. Mr. Lee makes all decisions with respect to tenancy applications.
26Mr. Lee gave evidence as a representative of the Corporate Respondent as well as in his personal capacity. Mr. Lee did not dispute the evidence of Ms. Cunanan with regard to her reasons for wanting to move into the building. Mr. Lee also agreed with Ms. Cunanan about her attendances at his office.
27Mr. Lee testified that when Ms. Cunanan attended at his office on June 23, 1998, he was busy with a task. He advised Ms. Cunanan that he could not readily find her application but would look for it. Mr. Lee advised that Ms. Cunanan was extremely aggressive and threatened that “you lose my application, I will go see my lawyer”.
28Mr. Lee testified that he did not advise Ms. Cunanan that her application had possibly been lost since there could have been “so many reasons” for his not being able to find Ms. Cunanan’s application, including it being misplaced by his wife. Mr. Lee testified that he didn’t advise Ms. Cunanan that her application had been lost because it was “embarrassing”, and “not good for (his professional) reputation to have lost something”.
29I accept Mr. Lee’s evidence that Ms. Cunanan’s application was lost or misplaced. I also accept his evidence that he was busy with a task when approached by Ms. Cunanan about her application. At the hearing, the Complainant did not suggest that Mr. Lee had purposely misplaced the application.
30What is clear is that there was a misunderstanding between Ms. Cunanan and Mr. Lee which, due to communication problems, was compounded by Ms. Cunanan’s perception that she had been discriminated against. The possibility of a misunderstanding between the parties regarding the significance of the missing application form was acknowledged by both parties at the hearing.
31Mr. Lee testified that he found Ms. Cunanan difficult and argumentative. Mr. Lee believed that he had not been given an opportunity to try and find the lost application form by Ms. Cunanan’s threat to go see a lawyer. His evidence was that threatening the property manager (with legal action) for a lost application was a “reaction out of the ordinary”.
32Mr. Lee further testified that when Ms. Cunanan threatened to see a lawyer, he waited for the lawyer’s letter “to explain what he had done wrong”.
33At the hearing, it was Mr. Lee’s evidence that he makes the decisions regarding prospective tenants and that he has never discriminated against anyone for any reason, including family status. Although Mr. Lee presented himself as a forthright person, I have trouble accepting the second part of his statement. For example, Mr. Lee admitted in his signed witness statement dated September 25, 2001 (Exhibit 7) that when deciding who is better for a unit, he looks at the number of people who are going to occupy the unit, and would “go by: one bedroom for a couple or single; two bedroom for a couple and one child and three bedroom for a couple with two children”: a principle that he considers to be a “Canadian standard”. Although he might rent a three-bedroom apartment to a person or couple with three children, he would only do so if the children were “very young”, or if “the children are young and the parents are new-comers”, although even then the family would “have to move to [a] bigger unit” after a year. The fact that Ms. Cunanan did not have an “ideal family” affected his rental decision because a family containing three teenagers would not be “suitable”; and if both an “ideal” family and a “non-ideal” family were to apply for the same apartment, he “would not bother to consider” the application from the “non-ideal” family.
34At the hearing Mr. Lee did not dispute the information in his witness statement. There was no attempt to distance himself from the witness statement or to provide an explanation. I find that the evidence contained in his witness statement is fatal to his defence that he did not discriminate against Ms Cunanan based on her family status.
35Mr. Lee’s evidence was clear that all tenancy decisions are his and his alone. There are no written criteria for renting units at 30 Godstone Road. Mr. Lee testified that in the normal course, he looks for tenants with a job, steady income, who are not “troublesome”, and other information he may learn from his review of the application. He does not give any instructions to Mr. Meakes regarding suitability of tenants.
Matthew Meakes
36Mr. Meakes testified that the building on 30 Godstone Road had suffered a lot of vandalism from teenagers from a neighbouring building located at 20 Godstone. Mr. Meakes further testified that he either said, or meant to say to Ms. Cunanan that if Ms. Cunanan’s teenaged children were “bad”, Ms. Cunanan’s application would probably be rejected.
37In his signed witness statement dated September 25, 2001 (Exhibit 8), Mr. Meakes did not deny having made the comment as alleged by Ms. Cunanan, instead stating that “I may have said something that was out of line to her…” and that “I hope I did not say that, but if I did I owe her an apology”.
38On re-examination, Ms. Cunanan frankly admitted that Mr. Meakes might have responded, or might have meant to respond, to her comment about her kids being “good” by telling her that (in that case) that shouldn’t be a problem. However, Ms. Cunanan firmly stated that any such comment from Mr. Meakes would only have been made in response to her prior objection to his initial remark.
39Mr. Meakes was a very animated witness, eager to explain his actions and comments as set out in the witness statement. While Mr. Meakes played a pivotal role in heightening Ms. Cunanan’s apprehension of bias from his first conversation with her, his role in this case is minor. It is clear that Mr. Meakes has no decision-making role at all in the management of 30 Godstone Road. This may explain why the seemingly contradictory nature of Mr. Meakes’s evidence – that there were informal rules of renting at 30 Godstone Road and that the management did not practise discrimination - was not seriously challenged by Commission counsel.
LAW
40The Supreme Court of Canada has consistently held that human rights legislation has a fundamental and quasi-constitutional status, and ought to be interpreted in a liberal and purposive manner in order to advance its broad underlying policy considerations. As a result, protected rights are to receive broad interpretation, while exceptions and defences are narrowly construed. See: B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] S.C.J. No. 67, at para. 44.
41This case involves the fundamental right of families, including children to access housing free from discrimination and reprisal. One of the earliest cases to recognize the emergence of the rights of families is the seminal case of Fakhoury v. Las Brisas Ltd. (1987), 1987 CanLII 8549 (ON HRT), 8 C.H.R.R. D/4028 (Ont. Bd. Inq.). In that case, the adjudicator, Michel Picher wrote at D/4031:
The rights of families, and particularly of children, have become the subject of increasing attention in recent times. The concern for the family, manifested in numbers of public enactments in Canada as well as in other jurisdictions, was seminally articulated in the Universal Declaration of Human Rights. That document of the United Nations, expressly referred to in the preamble of the Ontario Human Rights Code, 1981, contains the following declaration in article 16(3):
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
The importance of the family is further underscored by the language of article 12 of the Universal Declaration of Human Rights which provides:
No-one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
42It has been some 16 years since the Fakhoury decision has been released and there have been a number of decisions on discrimination in occupancy of accommodation faced by families in their various incarnations: Booker v. Floriri Village Investments Inc. (1990), 1989 CanLII 9077 (ON HRT), 11 C.H.R.R. D/44; Dudnik v. York Condominium Corp. No. 216 (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325; Thurston v. Lu (1993), 1993 CanLII 16453 (ON HRT), 23 C.H.R.R. D/253; Andrews v. Ptasznyk, [1998] O.H.R.B.I.D. No. 4; Leonis v. Metropolitan Toronto Condominium Corp. No. 741, [1998] O.H.R.B.I.D. No. 12; Kearney v. Bramalea Ltd., [1998] O.H.R.B.I.D. No. 21; Desroches v. Quebec (1997), 1997 CanLII 24806 (QC CA), 30 C.H.R.R. D/345. While I will not canvass the entire body of cases dealing with family status, it is against this background that I examine the issues raised in this case.
DISCRIMINATION ON THE BASIS OF FAMILY STATUS
43Was Ms. Cunanan subjected to discrimination on the basis of her family status by Mr. Lee and Boolean, contrary to subsection 2(1) of the Code?
Analysis
44Subsection 2(1) of the Code sets out that the Complainant has a right to equal treatment with respect to occupancy of accommodation without discrimination because of family status.
45Section 9 of the Code provides that no person shall infringe or do, directly or indirectly, anything that infringes a right of the Complainant.
46In alleging discrimination with respect to the occupancy of accommodation, the Commission carries the initial burden to establish a prima facie case of discrimination. It must prove the existence of a distinction, exclusion or preference based on a ground enumerated in subsection 2(1) of the Code.
47The test for finding a breach of the Code is whether it is more probable than not that discrimination was among factors that contributed to a respondent’s course of conduct.
48Proof of intent to discriminate is not necessary to establish a prima facie case of discrimination. A prima facie case may be established where a respondent has engaged in conduct having a discriminatory impact on a complainant.
49Once a prima facie case of discrimination is established, the burden shifts to the respondent to make out a legal justification or statutory defence.
50In the present case, the Respondents assert that there was no discrimination. They claim that their refusal to consider Ms. Cunanan’s tenancy application was not related to a prohibited ground under the Code. It is the Respondents’ position that they found Ms. Cunanan difficult and “troublesome”.
51I have had the chance to observe Mr. Lee give his evidence and believe his position in this case reflects his genuine belief that he did not discriminate against Ms. Cunanan on any prohibited grounds. Mr. Lee appeared to be a serious man who understood the issues in this case. I accept his evidence that he does his best for his tenants and tries to accommodate various non-traditional families.
52On the other hand, counsel for the Commission submits that it is more likely than not that the Respondents’ unwritten policy regarding “ideal” or “normal” families for three-bedroom apartments played some part in their refusal to consider Ms. Cunanan’s application for tenancy.
53Before I deal with the evidence, I would state that I have had great difficulty reconciling the evidentiary record produced by the Commission (specifically the witness statements of both Mr. Lee and Mr. Meakes) with the twenty sample Applications for Residential Tenancy (Exhibit 6) produced by the Respondents at the hearing. These applications were approved and the units rented to the respective tenants. While the Commission asserts that the evidentiary record suggests the Respondents had an unwritten and systemic policy of matching tenants with units, the information contained in the sample tenancy applications suggests otherwise. It would appear that despite his preconceived notions of what constitutes a “Canadian standard”, Mr. Lee exercised considerable flexibility towards prospective tenants regardless of the different composition of the family unit. Both Mr. Lee and Mr. Meakes were consistent in their evidence with regard to their accommodating various tenants who did not fit their unwritten policies. The actual tenancy applications do not bear out Mr. Lee’s and Mr. Meakes’s evidence on the witness statements. What this means is that the Respondents do not always apply their discriminatory unwritten policy to prospective tenants. It is trite to say that this does not amount to a defence or justification.
54In analyzing Mr. Lee’s actions in this case, even accepting Mr. Lee’s evidence that his actions do not reflect the information set out in his witness statement, I have considerably less sympathy for Mr. Lee’s argument that the Respondents were “waiting to hear from Ms. Cunanan’s lawyer” before letting her re-apply. The evidence is uncontroverted that Mr. Lee continued to refuse to permit Ms. Cunanan to reapply for the apartment even after speaking to Mr. Fraser on June 26, 1998.
55Although Mr. Fraser is not a lawyer, Mr. Lee conceded that he knew Mr. Fraser was acting as an advocate for Ms. Cunanan and Mr. Fraser spoke to him regarding his obligations under the Code. I find that Mr. Lee’s continued refusal to let Ms. Cunanan reapply for the unit after speaking to Mr. Fraser cannot be justified and it is more probable than not that discrimination on the basis of family status was among the factors that contributed to the Respondents’ conduct. This is especially so considering the totality of the evidentiary record.
56As in Fakhoury, this is not a case in which the respondent landlords have evidenced bad faith or hostility towards children. As in Fakhoury, it is the landlord’s honestly held belief that the rules which it has established respecting the occupancy of the apartments in question are neither unreasonable nor discriminatory against families.
57I should note that on January 20, 2003, four weeks after the hearing, Mr. Lee sent to this Tribunal correspondence which included among other things excerpts from City of Toronto By-Law No. 930-2000 which sets out occupancy standards as set out in the City By-Laws. This was not presented as evidence at the hearing and I do not intend to address the document in this decision.
58I accept the evidence of both Mr. Lee and Mr. Meakes that despite their general rules, they routinely rent one or two-bedroom apartments to families with children depending on the circumstances. At the hearing, Mr. Lee produced sample tenancy applications where families outside of the general rules were provided with smaller apartment units to suit their economic realities and in Mr. Lee’s words “to give them a hand”.
59However, in human rights jurisprudence, the intention to discriminate is not a pre-condition for finding someone liable under the Code. The legislative emphasis is not on finding fault, but in removing discrimination. Human rights legislation is concerned with the effects of discrimination, not the causes: see Robichaud v. Canada (Treasury Board) (1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326.
60I must therefore answer the question of whether in light of all of the evidence, Mr. Lee and Boolean breached the provisions of the Code.
61While I accept that Mr. Lee did not intentionally discriminate against Ms. Cunanan with regard to her application, I am satisfied that he did in fact act in an arbitrary and discriminatory manner with regard to her application, on account of her family status.
62Even accepting that Mr. Lee had lost the application and was waiting to hear from Ms. Cunanan’s lawyer, in light of the fact that Mr. Fraser telephoned Mr. Lee and: (i) advised him of his representation of Ms. Cunanan; (ii) advised Mr. Lee that Ms. Cunanan had been concerned that Mr. Lee was denying accommodation because of her three teenaged children; (iii) that she had been to CERA to discuss what her rights were; and (iv) that the Code provides protection for families and children, I cannot accept Mr. Lee’s explanation that he continued to wait to “hear from her lawyer”.
63Mr. Smith submits that a prima facie case of discrimination exists even where only one of the basis for the treatment complained of is prohibited under the Code, as a consideration of the prohibited grounds will be enough to taint the entire course of conduct. As a result, the test for finding a breach of the Code is whether it is more probable than not that discrimination was among the factors that contributed to a respondent’s course of conduct. Any doubt I may have about the case is addressed by the information contained in the witness statement of Mr. Lee. Although his tenant population may not bear out his policies, I cannot dismiss his own statements when examining his actions in their context. I am satisfied that the Commission has made a prima facie case of discrimination under the Code under the civil standard.
64The allegations in this case closely resemble those that were upheld by the Board of Inquiry (as it then was) in Fakhoury. In that case, the Board held that a corporate landlord and two property managers discriminated on the basis of family status by refusing to rent a two-bedroom to a single mother and three children aged 15 months to 14 years. The respondents conceded that they would have rented the apartment to a family of four consisting of two adults and two children but argued that a family of four consisting of two adults and two children could only rent a three-bedroom apartment at an additional cost of $60 per month.
65The Board found that the impugned rental policy clearly discriminated on the basis of family status, stating at D/4036:
The respondents will readily rent a two-bedroom apartment to four persons, provided only that no more than two of those persons are children. Two parents and two children can, therefore, occupy the unit that is the subject of this dispute. The complainant, being in the position of a single parent with three children was denied access to the apartment...A nuclear family of two parents and two children could freely have the unit while a single parent with three children could not. In these circumstances, I find it impossible to conclude other than that the distinction drawn by the respondents in denying the unit to the complainant was based solely on “family status.”
That is a distinction the legislation will not countenance. In the eyes of the Ontario Human Rights Code a family of four is a family of four...The Legislature has deemed it appropriate, indeed urgent, to protect families and their children in their access to reasonable living accommodation. The Code does not permit landlords to impose their vision of the “normal” family to deny equal access to accommodation to single parents solely because of their family status.
The above quote is applicable to the present case. Based on the application of the Respondents’ unwritten policy of “Canadian standards”, Ms. Cunanan was denied the three-bedroom unit because of her family status (i.e., the Respondents did not want her and her three teenaged sons to live in the three-bedroom unit).
66In light of the fact that the Respondents have not established a justification or defence to their actions, for the foregoing reasons, I find that the test for the breach of the Complainant’s right under the Code has been made.
DISCRIMINATION BECAUSE OF ASSOCIATION
67Having found that family composition played some part in the Respondents’ refusal to consider Ms. Cunanan’s application, I now turn to the Commission’s submission that the refusal, insofar as it was based on the fact that Ms. Cunanan had a 19 year old son,1 also discriminated against her because of her association with someone identified by the prohibited ground of age, contrary to subsection 2(1) and section 12 of the Code.
68The Commission does not seek separate remedies with respect to these overlapping sections. Section 12 is an interpretative section of the Code. It reads:
A right under Part I [e.g., subsection 2(1): discrimination in occupancy of accommodation based on family status] is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
No doubt section 12 was included to catch those situations where the complainant who alleged discrimination was not covered by a prohibited ground in Part I, but for his/her “relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.” This is not the situation in the present case. Ms. Cunanan is clearly covered by subsection 2(1) of the Code. At the hearing, the section 12 issue was not addressed in detail by the parties. In light of the position of the Commission and my comments above regarding section 12, I decline to make any findings regarding section 12.
REPRISAL
69For the purpose of section 8 of the Code, reprisal takes place where a respondent imposes or threatens adverse consequences against a complainant who claims and/or enforces his or her rights under the Code. It is not necessary for a complainant to have lodged a formal complaint with the Commission before a finding of reprisal can be made. A reprisal can still take place even where a complainant has simply lodged an informal internal complaint that has come to the respondent’s attention. For a finding of reprisal to be made, one must establish that the respondent intended to punish or retaliate against the complainant for his/her assertion of rights under the Code: see Jones v. Amway of Canada, Ltd., [2001] O.H.R.B.I.D. No. 9, at para. 108; upheld on appeal, [2002] O.J. No. 1504, at para. 11.
70The Commission submits that at the latest, the Respondents became aware that Ms. Cunanan was seeking to claim and enforce her right under the Code by June 26, 1998 when Mr. Fraser called Mr. Lee. Even accepting, as I do, that Mr. Lee had lost the application and was waiting to hear from Ms. Cunanan’s lawyer, in light of the fact that Mr. Fraser telephoned Mr. Lee and: (i) advised him of his representation of Ms. Cunanan; (ii) advised Mr. Lee that Ms. Cunanan had been concerned that Mr. Lee was denying accommodation because of her three teenaged children; (iii) that she had been to CERA to discuss what her rights were; and (iv) that the Code provides protection for families and children, I cannot accept Mr. Lee’s explanation that he continued to wait to “hear from her lawyer”. However, while Mr. Lee’s continued refusal to reconsider his decision after the call with Mr. Fraser confirms his continued discriminatory act against the Complainant on the basis of family status, I do not believe that the Commission has made out a case of reprisal. It has not established the requisite intentional component of reprisal.
LIABILITY OF MR. LEE
71The Commission seeks a finding of liability against both Mr. Lee and the Corporate Respondent. The Commission submits that a finding that Mr. Lee was acting in his capacity as owner/director/building manager of the Corporate Respondent should not insulate him from a finding of liability personally.
72The Board previously considered the issue about finding liability against an individual where a corporate employer was already named as a party in Booker, supra. In that case, the Board held that a superintendent discriminated by rejecting a single mother and child on the grounds that the building was a “family building” that preferred married couples. The corporate respondent was found liable for the superintendent’s conduct pursuant to what is now subsection 45(1) of the Code but the Board declined to find the property manager liable. In that case, the superintendent, whose evidence was deemed critical, had been dismissed from his employment and did not appear at the hearing. The adjudicator at the hearing left open the possibility that had there been evidence presented that the property manager implemented a discriminatory rental policy or was involved in rejecting the complainant’s application on the basis of her family and marital status, he would have been personally liable: para. 69.
73In the present case, Mr. Lee clearly testified that he, and he alone, was responsible for the development of all rental policies. He was personally involved in screening all tenant applications for the building, including the Complainant’s application. Mr. Lee’s evidence was equally clear that the superintendent, Mr. Meakes, had no role in the refusal to move Ms. Cunanan’s application forward or to her let reapply once the application was deemed lost.
74Mr. Lee acted in his capacity as the sole director/officer of Boolean and property manager of 30 Godstone Road. There is no sound reason why Mr. Lee should not be personally liable. The fact that a corporate respondent is found liable does not act as a defence or shield to the finding of liability against a personal respondent who is the owner and directing mind of the corporate respondent. By analogy, this issue as it relates to adding a personal respondent where his/her corporate employer/principal is a party, was dealt with recently by the Chair of the Tribunal, Matthew D. Garfield, in Epstein v. York Condominium Corporation 67, 2003 HRTO 14, at paras. 28-33 and Payne v. Otsuka Pharmaceutical Co., [2001] O.H.R.B.I.D. No. 23, at paras. 46-48. In Epstein, the Chair of the Tribunal wrote at para. 28:
They [ss. 39(2)(d) and 39(3)] do not restrict their application to corporate respondents only, or to adding personal respondents only where no corporate respondent is already a party. Notwithstanding that the power to add is a discretionary one, the Cugliari and Payne decisions demonstrate that the section is not to be used as a shield or defence. This Tribunal endorses that approach.
I also adopt that approach, by analogy, to the present case. I also add that section 39(1)(b) mandates that “The Tribunal shall hold a hearing,…to determine who infringed the right;…” That section of the Code does not provide a defence to a personal respondent, in effect allowing a personal respondent to otherwise avoid liability because his/her corporate respondent employer is found liable for a breach of a complainant’s right. I am not suggesting, though, that the individual factors of a case where both the corporate respondent and the employee or agent respondent have been found liable should not be considered in the remedial stage, as they relate to remedies against the employee or agent respondent.
75Accordingly, the order will be made against Mr. Lee as well as the Corporate Respondent, Boolean.
REMEDY
76Since the Fakhoury decision in 1987, the Tribunal (including the Board of Inquiry, as it was called prior to November 26, 2002) has considered numerous cases on discrimination due to family status. We know that families come in many different forms.
77The purpose of prohibiting discrimination on the basis of family status with respect to the occupancy of accommodation is to remedy the hardship experienced by families with children, who have traditionally experienced difficulty in obtaining equal access to the rental of living accommodation, particularly in high-density urban areas. The importance of enforcing the prohibition reflects the reality that: (i) the family is the natural and fundamental group unit of society; and (ii) housing represents a basic need of every individual in our society.
78It has been some 13 years since the Booker case was decided. In that case, the Board awarded $2,000 for general damages. The Commission requests general damages of $4,000 for the infringement of the right to be free from discrimination with respect to occupancy of accommodation because of family status, in part, as an updating of the Booker damages.
79I agree that $4,000 is an appropriate figure taking into account the Booker figures. I so order that these be paid by the Respondents jointly and severally.
80I order prejudgment interest on the $4,000 from October 5, 1998 (the date of the complaint) to the date of this Tribunal’s decision, at the rate set out by the Court of Justice Act. The Respondents shall also pay postjudgment interest pursuant to the Court of Justice Act, commencing 30 days from the date of the Tribunal’s order in this matter.
81The Commission seeks the following public interest remedies:
Order that the Respondents allow the rental of three-bedroom apartment units to families with three children.
Order that the Respondents do not exclude families with teenaged children from the occupancy of accommodation.
Order that the Respondents work with the Centre for Equality Rights in Accommodation to develop occupancy standards that do not exclude potential tenants on the basis of family status.
82As stated earlier, I find that Mr. Lee and Boolean have a general guideline or policy for matching units with families which discriminates against families with teenaged children and which played a part in the dispute between Ms. Cunanan and the Respondents. I also find that the Respondents had a parallel general practice of accommodating and renting to tenants with families of different compositions (e.g., rental of one or two-bedroom apartments to families with many young children). No doubt the Respondents will take heed from this Decision and no longer, whether in an unwritten policy, or in practice (regardless of the number and frequency), discriminate against prospective tenants on the basis of their family status. Accordingly, I am ordering that the Respondents cease and desist from refusing to rent an apartment to a tenant with teenagers for the reason, or any part thereof, that the tenant has teenaged children. This includes refusing to rent a three-bedroom apartment because the prospective tenant has three teenaged children who will occupy the unit. My findings and Order are not to suggest that a landlord must rent to a prospective tenant with teenaged children, regardless of the size of the unit, if there are lawful reasons for refusing to rent.
83I would like to thank all parties for their patience in awaiting these Reasons for Decision.
ORDER
84The Tribunal orders:
Boolean Developments Limited and Edmond Lee are liable, jointly and severally, in the amount of $4,000 to Maria Cunanan for the loss arising out of the infringement of her rights;
prejudgment interest is to be paid on the $4,000 award from October 5, 1998 (the date of the complaint) to the date of this Order, at the rate set out by the Court of Justice Act. The Respondents shall also pay postjudgment interest pursuant to the Court of Justice Act, commencing 30 days from the date of this Order; and
Boolean Developments Limited and Edmond Lee cease and desist from refusing to rent an apartment to a tenant with teenagers for the reason, or any part thereof, that the tenant has teenaged children. This includes refusing to rent a three-bedroom apartment because the prospective tenant has three teenaged children who will occupy the unit.
Dated at Toronto, this 27th day of August, 2003.
“Won J. Kim”
Won J. Kim, Member
Footnotes
- In subsection 10(1) of the Code, “age” is defined as 18 years or more, except as to subsection 5(1). Only one of Ms. Cunanan’s children was over 18 at the time of the infringement. However, in Dudnik, supra, the Board of Inquiry held that the “over 18” definition of “age” was contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms and not saved by section 1 “with respect to situations simply involving the occupancy of accommodation,…” The Divisional Court declined to deal with this issue on the appeal: (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406, at para. 23.