HUMAN RIGHTS TRIBUNAL OF ONTARIO
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 Joanne Di Marco, dated June 4, 2000 alleging discrimination respecting the occupancy of accommodation, on the basis of disability.
B E T W E E N :
Ontario Human Rights Commission
Commission
- and -
Joanne Di Marco
Complainant
- and -
Ron Fabcic
Respondent
DECISION
Adjudicator: Mark J. Sandler
Date: March 3, 2003
Citation: 2003 HRTO 4
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 ) Amyn Hadibhai, Counsel Joanne Di Marco, Complainant ) on her own behalf Ron Fabcic, Respondent ) on his own behalf
INTRODUCTION
1The Complainant is physically disabled. She and her children were to rent the ground floor of the Respondent’s bungalow residence. The Respondent agreed to build a ramp and railing at the residence’s front entrance to facilitate the Complainant’s access to the home. Before the Complainant was scheduled to move in, the rental agreement fell through. The Complainant alleges that the Respondent refused to build the ramp and railing, as agreed upon, and that, as a result, she was unable to move in. She therefore asserts that she was denied the right to equal treatment with respect to the occupancy of accommodation, without discrimination because of disability. The Respondent maintains that he did not discriminate against the Complainant, as she chose not to move in.
2The Complaint that is the subject of this proceeding was initiated on June 4, 2000. It was referred to the Board of Inquiry (now the Human Rights Tribunal of Ontario) on June 25, 2002. The hearing commenced, by way of telephone conference call, on July 31, 2002. A pre-hearing conference call followed on September 23, 2002. Evidence and submissions were heard on January 13 and 14, 2003. The Complainant was unrepresented. Her position was advanced by counsel for the Commission. The Respondent was also unrepresented. However, his presentation was articulate and well focussed. After submissions were completed, I reserved my decision. The decision and reasons follow.
ISSUES
3(1) Did the Respondent deny the Complainant the right to equal treatment with respect to the occupancy of accommodation without discrimination, because of disability?
(2) If so, what is the appropriate remedy?
DECISION
4For reasons that follow, I find that the Complaint has been made out and award special and general damages as specified herein.
THE EVIDENCE
5Joanne Di Marco, the Complainant, is physically disabled, largely as a result of a serious car accident. Her disability is compounded by the fact that she is diabetic and prone to a condition that causes her pancreas to shut down when seriously stressed. She has limited control of her bowels and has colitis. Although her physical situation is now much improved, in December 1999 and early 2000, she moved about with the assistance of a walker and had difficulty negotiating stairs.
6She is a single mother with two young children. One child is asthmatic, the other has cerebral palsy. At the material time, they were 5 and 2 years old.
7Prior to December 1999, Ms. Di Marco was living in subsidized housing in the Burlington area. This housing was problematic for her. The only washroom and the children’s bedrooms were up a 14-step flight of stairs, which the Complainant had great difficulty negotiating. As a result, she was forced to essentially live on the one-room main floor. She slept on the sofa and used a commode which provided no privacy, unlike the upstairs bathroom. She was also unable to put her children to bed. Various community services in Halton Region were involved in assisting her in child care, homemaking and personal care. Her sister was remunerated for providing some of these services. The Complainant’s home was a significant distance from her sister’s home.
8As a result of these difficulties, Ms. Di Marco was seeking a rental unit that could better accommodate her disability. Such a rental unit would involve a main-floor bathroom and bedrooms, and, to state the obvious, appropriate accessibility to the rental unit itself from outside.
9In 1999, Ms. Di Marco heard that the Respondent, Ron Fabcic, a co-worker of her ex-husband Samuel Reyes might be offering the main floor of his Mississauga home for rental. She spoke with him and was excited about the prospect of moving in, since his home was apparently a bungalow, close to a hospital, much closer to the homes of her mother, sister and ex-husband. Her ex-husband has continued to assist her and has remained involved in parenting.
10Sometime in late 1999, most probably in December, Ms. Di Marco inspected Mr. Fabcic’s home for the first time, accompanied by Mr. Reyes and the Complainant’s two children. They arrived by taxi. (The taxi ride cost approximately $40.) There were five stairs leading to the front entrance. As well, there was no railing alongside these stairs. The interior of the house suited the Di Marco family well. It was contemplated that the Respondent would live in the basement, where renovations were to be completed and that he would use the rear entrance to the home, which would be made private. The Di Marco family would utilize the front entrance.
11According to Ms. Di Marco, she indicated from the outset that she could not manage the front entrance stairs with her disability. Indeed, she was only able to view the home through the slightly more accessible rear entrance stairs, and even then, only with assistance. She testified that the Respondent readily agreed to install a ramp and railing, the latter also to protect her children, as he was renovating the home anyway. He indicated that he was in the construction business and could easily obtain the materials. According to Ms. Di Marco and Mr. Reyes, Reyes offered to help construct the ramp, if he was needed. (As will be noted below, the Respondent denied that a ramp was even discussed on this initial visit, although he conceded that it was discussed and agreed upon on a later date.)
12According to Ms. Di Marco, it was agreed that she would give the Respondent a $200 cash deposit, which she did on the first visit, soon to be followed by the rent for the first and last month. The rent for the first and last month was indeed provided shortly after the first visit. It was also agreed that the Complainant would move in on February 1, 2000 and would be allowed to have the premises painted in mid-January. The painting could not be left too late, since fresh paint could aggravate the asthma of Ms. Di Marco’s son. A certified cheque dated December 16, 1999 payable to the Respondent in the amount of $1,530 was filed as an exhibit. It is uncontested that the Respondent received this cheque and that it represented the agreed upon rent for the first and last month, less the $200 deposit. The Complainant suggested that this money was purportedly required by the Respondent to build the ramp and railing. (The Respondent maintained that he told Ms. Di Marco that the money was needed to finish the basement.)
13Ms. Di Marco attended the home a second time, accompanied by her sister and mother. It is clear that the Di Marco family was there, in part, to determine where their furniture would go and other matters associated with moving in. According to Ms. Di Marco, her mother and sister, all of whom testified, the ramp was again discussed. The Respondent reassured them that it would be built.
14At some point, there was also discussion about storage space. Again, there were differences in recollection between the Commission witnesses and the Respondent as to when these discussions took place. However, it is common ground that, at some point, there was agreement that Ms. Di Marco would be provided part of the garage as storage space and would be permitted to put up a shed outside the house.
15There was abundant evidence demonstrating that Ms. Di Marco did contemplate making the move to Mr. Fabcic’s home. In particular, she paid various individuals to pack up her premises. Her personal journal (which I admitted for a limited use) showed a few instances where workers signed off on Ms. Di Marco’s handwritten entries as to how many hours they had packed and the amount they had been paid. Other entries in the journal were less clear: either because they were not “signed off” or because they did not state whether the work paid for was packing or something else. Ms. Di Marco estimated that the packing costs were $800-$850. There is no doubt that packing costs were incurred by Ms. Di Marco. The evidence was not compelling as to the precise amount of those costs. Apart from the above estimate, there was no attempt to correlate the entries in her journal to the $800 figure provided. My own review of the journal entries could not correlate the entries to the Complainant’s estimate.
16As earlier noted, the Complainant and her family were provided various community services that were available to her in Burlington. She tried to arrange to transfer some or all of these services to Mississauga, once the move was contemplated. Ultimately, when the move fell through, some but not all of these services could be restored to her. In particular, the March of Dimes provided a service that assisted in bathing and putting the children to bed. That service was cancelled in Burlington due to the impending move. Once the move fell through, the Complainant learned that the March of Dimes had given her hours to another family. March of Dimes was only able to restore a portion of the previous hours provided. The Complainant had to pay an unspecified amount to fill in for the services that were no longer available.
17On or about January 14, 20001, a telephone conversation took place between Ms. Di Marco and Mr. Fabcic. This pivotal conversation was described differently by the Complainant and by the Respondent.
18The Complainant testified that she went to pick up the keys to the Respondent’s home shortly before this call. She saw there was still no railing or ramp. She contacted the Respondent by telephone and asked how she could move in. The Respondent then expressed anger and resentment over what he had agreed to previously. He said that he had changed his mind. He had spent too much money. The Complainant had put pressure on him to be ready by February 1. She told him that she had already given notice, and would be homeless if she could not move in. He told her to ask others to put in a ramp, questioned why he had to pay for it, offered to complete the ramp for $50 an hour, said he had changed his mind about the rent and thought he could get $1,000 for the unit. The Complainant said that she offered to pay him additional monies up front if that would assist in having the ramp completed.
19The Complainant indicated that, after this telephone call, she became scared that she would be homeless. The stress precipitated a medical incident that caused her to be hospitalized on January 25, bleeding and vomitting. She was in hospital until February 5 and paid close to $3,000 for baby sitting services. (There is a reference in her journal to the need to pay for these services, but no proof was provided as to the actual amount paid out either in documentary form or from witnesses to whom the monies had been paid.) The Complainant was able to arrange to remain in her home. She had to pay an amount, also unspecified, for others to unpack the family’s belongings.
20The Complainant testified that losing the opportunity to move into the Respondent’s home was devastating, medically and emotionally.
21The Complainant’s sister, Anna Zilabec, her mother, Maria Di Marco and her ex-husband, Samuel Reyes, were also called as witnesses by the Commission. It is unnecessary to summarize their evidence in detail. They provided some support for the Complainant’s testimony that her Burlington home was problematic, that the Respondent agreed to provide a ramp and railing, that Ms. Di Marco took the steps associated with an anticipated move, and that she was hospitalized after the move fell through. Ms. Zilabec also provided some support for the Complainant’s recollection that the basement appeared to be ready for habitation.
22Maureen Brown, a developmental counsellor with the Region of Halton, Children’s Resource Services, described the assistance provided by community agencies for the Complainant, and some of the steps taken to restore those services when the move fell through. At one point, Ms. Brown was advised by the Complainant that she had decided not to move. She mentioned that the landlord had refused to put in the ramp. The waiting time for child care and other services was unacceptable to her so she was better off staying in Halton. The Complainant sounded normal and not stressed when she indicated that she was unable to move.
23The Respondent, Ron Fabcic, is a single father of two. He is a bricklayer. In November 1999, he was experiencing financial difficulties. A business associate suggested that he rent part of his house. He was reluctant because the basement was unfinished and would have to be renovated. As well, although he did not have custody of his two children, he had generous visitation rights and had to have accommodations for his children when they stayed with him. He did not have the finances to complete the basement renovations. Samuel Reyes said that his family – that is, his ex-wife and children – were looking for a place to live. Mr. Reyes offered to supply the rent for the first and last month to complete the basement. Arrangements were made for Ms. Di Marco and Mr. Reyes to view the home. Upon viewing the home, the Complainant said that she needed a railing to help her up the front entrance. The Respondent said this would not be a problem. The Complainant was also offered storage space in the garage. It was then agreed that Ms. Di Marco would rent the upstairs and a $200 deposit was provided. The Respondent indicated that he would need the rent for the first and last month to finish the renovations. The cheque was provided shortly thereafter.
24The Respondent testified that the Complainant returned for a second viewing in January, 2000. She said she needed more storage space in the garage and a ramp at the front entrance. The Respondent agreed to these terms, but needed to complete his basement first.
25Mr. Fabcic testified that a week later, he received a telephone call from Ms. Di Marco. (This would appear to be referable to the same telephone call described by the Complainant.) She was hysterical. She claimed that she could not move in. The place was too small. As her belongings were being packed, she could see that there were too many things to move in. A shed was then discussed. The Respondent agreed to allow a shed to be placed by the side of the house and agreed to provide more space in the garage. There was then disagreement over a small closet that the Respondent wanted to build on the main floor. Ms. Di Marco refused to allow the closet to be built, despite the Respondent’s reassurance that it would not affect her space.
26The Respondent became upset. He felt that the Complainant was demanding more but not accommodating his needs. She then asked when the ramp would be completed. The Respondent explained that the basement, especially the bathroom, needed to be done. He hoped to have the ramp done in time but could not promise that it would be completed. According to him, she no longer wanted to rent the place and demanded her deposit back. That was impossible because the deposit had funded the basement renovations. The Respondent later added that the Complainant agreed at first to use the back entrance until the ramp was done.
In Exhibit 31, the Respondent’s written statement, the following is also stated:
For the last month [referring to the period before the telephone call] I have been off work for the purpose of trying to finish the basement. I have walls, ceiling, electrical, plumbing, kitchenette done. I still have to finish the bathroom, floors and windows. Money is now gone. My tenants are now putting more pressure on me to finish the job. Two weeks before they were to move in Joanne called me in hysterics, insisting that she was unable to move in because she had too many personal belongings. She felt that moving from a three floor townhouse to a small bungalow was impossible due to a lack of storage. At this point, I panicked. I informed her that I could not refund her monies due to the fact that I used it to finish the basement. At this time I finally agreed to her purchasing a shed. To be place (sic) at the side of the house. I also agreed to more room in the garage for storage. As for the ramp issue, I informed Joanne that I didn’t have the time to install a ramp at this time. I had suggested that her husband Sam come over and help me or better build the ramp himself. I know and Joanne knows that her husband is fully capable of building the ramp himself. It was then that she informed me that she was not moving in and insisted on getting her money back. I then responded that I no longer want to rent my house to anyone. A day or two later, Sam called me, and I asked what’s going on! Sam then responded “She’s not moving in. We want our money back now: “That is all because I refused to build the ramp![’’] I replied by saying. “I never refused to build the ramp, but I’m still going off the original agreement that the basement comes first.[”] (emphasis added.)
27In his testimony, Mr. Fabcic conceded that he asked Reyes whether the Complainant and Mr. Reyes wanted their money back because he refused to build the ramp. He also conceded that he knew that storage space wasn’t a problem anymore. He reiterated that he wasn’t refusing to build the ramp, only that the basement came first.
28The Respondent admitted that, during his telephone call with the Complainant, he did mention an increase in the rent. He said that he did so because he was getting upset. He was expressing the view that he should have raised the rent for all the stuff the Complainant wanted. He also admitted that he did say that if the Complainant wanted the ramp done now, she should give him $50 an hour and he would finish it.
29The Respondent explained that he was originally going to refund the deposit provided. However, he decided not to do so because of this Complaint. He has refused to pay the money back now. He would not have incurred the costs of renovation, if the Complainant had not agreed to move in. He had missed a lot of work to do the renovations as well. By refusing to move in, the Complainant had disentitled herself to the return of her deposit. In the Respondent’s view, the basement was a priority over the ramp. According to him, the Complainant had agreed on that priority.
30Extensive invoices were filed as exhibits during the Respondent’s testimony. The invoices were designed to demonstrate that substantial renovations were being done from December 18 onwards and to support the Respondent’s position that the basement was not completed when he spoke to Ms. Di Marco on January 14. The invoices, mostly from Home Depot, contain descriptions of items purchased. They extend from December 18, 1999 to January 16, 2000. An invoice dated April 16, 2001 was also filed to support the Respondent’s testimony, contrary to what the Complainant said, that carpeting was only installed in the basement well after his encounter with the Complainant. More recent invoices were also submitted to support the Respondent’s position that renovations were still ongoing well after the material events. Many photographs were also introduced, both taken at the material time and recently, to show that the basement was far from completed in early 2000.
31Shawna Lee Fabcic, the Respondent’s 14 year old daughter, testified that she moved into the Respondent’s home permanently in September 2000. She confirmed that the basement was far from completed at the end of 1999 and in early 2000. There was no bathroom in the basement.
32Walter Fabcic, the Respondent’s brother, assisted the Respondent in the home renovations. He too confirmed that the basement washroom was not done by the end of 1999 and that the basement was far from completed.
ANALYSIS
33There is an important distinction between credibility and reliability. Credibility has to do with the sincerity, honesty or trustworthiness of a witness. Reliability has to do with the accuracy of a witness’s testimony. An honest or sincere witness may be very credible, but provide unreliable evidence, for example, because the witness’s recollection is flawed.
34All of the witnesses, including the Complainant and the Respondent, were honest or sincere. However, both the Complainant and the Respondent, although sincere, were coloured by their perceptions of the rights and wrongs of the situation, to a point that some aspects of their evidence were inadvertently inaccurate. The Complainant was often unresponsive to questions and somewhat argumentative with the Respondent. There were some inconsistencies between her testimony and her prior statements, and a significant amount of imprecision in the details associated with this matter. That being said, her evidence was heartfelt and, in critical areas, uncontested or supported by credible and reliable documents or testimony of other witnesses.
35The Respondent was largely responsive to questions, and presented his evidence in a factual way. That being said, some aspects of his testimony were internally inconsistent or defied common sense. In any event, he made candid, but critical admissions, that had to figure prominently in the determination of the case’s merits.
36All other witnesses, for the Commission and for the Respondent, gave honest and, in most instances, reliable evidence, except as may be indicated below.
37There is no doubt that the Complainant was highly desirous of moving out of the Burlington premises. There is also no doubt that the fact that the Respondent’s home was near a hospital, closer to the Complainant’s sister, mother and ex-husband, and had a bathroom and bedrooms at ground level, made it an attractive prospective home for the Complainant.
38There is no dispute that the Complainant at various times visited the Respondent’s home and that agreement was reached that she would rent the ground floor for $865 a month. There is no dispute that the Respondent would live downstairs. There is no dispute that the Complainant, directly or through Mr. Reyes, provided the rent for the first and last month to the Respondent, at the Respondent’s request, by mid-December, 1999. There is no dispute that the Respondent agreed to install a ramp and railing to accommodate the Complainant, although there is no agreement as to when this was requested and agreed upon. Frankly, it is unnecessary to resolve that issue, although the reliable evidence tends to favour the view that this was requested and agreed upon at the first visit. After all, even the Respondent agreed that the Complainant was walking with the assistance of a walker and entered by the rear entrance. It makes sense that the ramp would be an issue raised early in the discussions.
39There is disagreement over what the rent for the first and last month was to be used for. The Complainant said that she was told that the money was to be used to install the ramp and railing. The Respondent said that it was clearly to be used for the renovations of the basement. The difference in recollection reflects the respective priorities each party gave to the ramp as opposed to the basement renovations. It really does not matter what words were used in this regard. What is clear – and again undisputed – is that the Respondent undertook to both complete the basement renovations to a point where it was habitable and to install the ramp and railing. No doubt, the funds were to help him generally in fulfilling what he undertook to do.
40I am completely satisfied that, prior to January 14, 2000, the Complainant fully intended to move into the Respondent’s home, anticipated that the move would occur and governed herself accordingly. This meant that much of the packing was done, and paid for by the Complainant, and efforts were made to transfer or replace community services being provided to the Complainant in Burlington.
41On January 14, 2000, a telephone conversation between the Complainant and the Respondent ended the contemplated move. The Respondent maintains that it was at the Complainant’s instance that the deal was terminated, based upon the fact that the Complainant now felt that the premises were too small. This makes no sense. The Respondent conceded that the topic of storage space for the Complainant was resolved by the parties, through his agreement to provide extra space in the garage and to allow the erection of a shed outside the house. I reject the notion that the parties came to agreement on storage issues but the Complainant nonetheless chose to termination the rental agreement because of lack of space.
42Indeed, other admissions made by the Respondent were inconsistent with his position that the Complainant chose to terminate the agreement based on lack of space. He conceded that the Complainant pressed him on the fact that the ramp and railing were not constructed. He conceded that he revisited why he should be compelled to install these items. He agreed that, in anger, he said that the ramp would be built if he was paid $50 an hour to do so, and questioned the adequacy of the monthly rental he had previously agreed to. He also conceded that the following day, he questioned Mr. Reyes whether the deal fell through because he had refused to build the ramp. The irresistible inference to be drawn is that the real point of contention during that telephone conversation concerned the ramp and railing.
43That being said, the Respondent has maintained that the agreement was always that he would renovate the basement and then construct the ramp and railing. On January 14, the basement was far from completed. Accordingly, he was not yet in a position to complete the ramp and railing.
44I have no doubt that from his perspective, he had to make the basement habitable before the Complainant could move in. I also have no doubt that the basement was not yet habitable by January 14. In this respect, I prefer the evidence of the Respondent, his daughter and brother, to the evidence of the Complainant and several of the other witnesses who described the status of the basement. The Respondent’s evidence in this respect was not challenged in cross-examination and was supported by invoices and photographic evidence.
45Accordingly, when the Complainant expressed concern about the absence of the ramp and railing and the approaching date for possession, the Respondent would have been entitled to state that, despite best efforts, the basement was not yet habitable and that, until it was, the Complainant could not move in. I do not find it necessary to resolve the debate whether the ramp should have been built before the basement renovations were completed or vice versa. The point is that it would be unreasonable to say that the Respondent was in violation of the Human Rights Code (“the Code”) if he could not complete the basement renovations as well as the ramp and railing by February 1.
46However, the Respondent did not take the approach with the Complainant that he was prepared to build the ramp and railing, but needed more time to do that, as well as make the basement habitable. He did not canvass whether the move could be deferred or whether an additional deposit might facilitate completion of the work to be done. If he had, the Complainant might well have recognized that she could remain in her Burlington home until the end of February and compromised. If he had, the Complainant might well have advanced him an additional deposit. Indeed, I accept her evidence that, at one point in the relationship, she offered to do so.
47Instead, the Respondent led the Complainant to believe that he was refusing to install the ramp (unless she paid him) and was refusing to rent the premises to her under the circumstances. Perhaps, it was anger over what he perceived to be the Complainant’s intransigence on the timely completion of the ramp and railing or on the main-floor closet that drove him to that position. But two things are clear. First, the Complainant was entitled to have the ramp and railing built. Second, the only conclusion that the Complainant could draw from the Respondent’s comments was that he was refusing to build the ramp and railing and that the transaction was being terminated by the Respondent.
48I do not believe that the Respondent set out to discriminate against the Complainant by reason of her disability. He suffers from some physical disability himself and recognizes the need to accommodate disability. However, in this case, that is precisely the effect of his action. He effectively refused to install the ramp and railing, having earlier agreed to do so. As a result, the Complainant was denied the right to equal treatment with respect to the occupancy of accommodation, without discrimination because of disability, within the meaning of subsection 2(1) of the Code.
49I wish to note here that no real issue was taken with the reasonableness of installing a ramp and railing to accommodate the Complainant’s disability. Initially, the task was regarded as a modest one by the Respondent. He was in construction and indicated that he could secure materials from work in order to complete the task. Although the basement, ramp and railing were not completed when the rental agreement fell through on January 14, the Respondent tendered no evidence that the ramp and railing could not have been built, and the basement made habitable, within a reasonable period of time, without undue hardship. No costing was done. The ramp and railing were not even commenced. Mr. Reyes was not asked to assist the Respondent. Accordingly, this case should not be taken to establish any general principles concerning reasonable accommodation of a disability by a homeowner. Each case is dependent on its own facts.
REMEDY
Damages Sought
50Damages sought by the Commission on behalf of the Complainant were as follows:
(1) the $1,730 provided to the Respondent by cash and cheque;
(2) the $800 estimated packing costs;
(3) child care expenses while the Complainant was in hospital. $800 is requested;
(4) $40 for the tax cab ride to visit the Respondent’s home;
(5) general damages for mental anguish in the amount of $4,000 and for the right to be free of discrimination in the amount of $4,000;
(6) post-judgment interest generally;
(7) pre-judgment interest at least in respect of the $1,730 provided.
No public interest remedies are sought. The Respondent is unlikely to be renting in the future.
General Principles
51Subsection 41(1) of the Code provides, inter alia, that the Tribunal may direct the Respondent who has been found to have infringed the Complainant’s right under the Code, to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
52Restitution is often framed in terms of special and general damages. The purpose of special damages is to compensate the Complainant by restoring her, as far as reasonably possible, to the position that she would have been in, had the discriminatory act not occurred. That being said, special damages must be proven through viva voce or documentary evidence or both. Speculation as to the monetary losses suffered by a Complainant cannot form the foundation of an order for special damages, particularly where those losses are indeed susceptible to such proof.
53An award of general damages is to be restitutional, not punitive. In assessing the quantum of such damages, it is appropriate to consider, inter alia, the circumstances of the infringement, including its severity, frequency and duration, and the resulting impact, such as humiliation, loss of dignity and self-respect, on the Complainant.
54An award for mental anguish may only be made where the violation was engaged in wilfully or recklessly by the Respondent. “Wilfulness” requires both that the conduct be intentional and that the infringement of the Complainant’s rights under the Code be the purpose of the conduct: York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360 (Div. Ct.). “Recklessness” is conduct which demonstrates a wanton disregard or indifference to the consequences of one’s actions.
Application of Principles
55In my view, as a result of the Respondent’s conduct, the Complainant lost $1,730 provided to the Respondent by cash deposit and by cheque. The Respondent admitted that he originally intended to return this amount but decided not to do so because this Complaint was brought. In effect, his decision could be regarded as tantamount to a reprisal for this Complaint being brought.
56The Complainant incurred packing and unpacking costs associated with a move that did not take place as a result of the Respondent’s conduct. The difficulty is that there is no correlation between the Complainant’s rough estimate of the packing costs and the documentary evidence. No witnesses were called to substantiate the amounts paid for packing and unpacking. I am satisfied, based upon a careful review of the journal that, although the costs may well have been higher, only $629 in packing costs has been proven. This represents the total of amounts contained in the journal that were specifically designated as packing or unpacking costs, whether “signed off” or not. I am satisfied that these truly represent costs properly associated with the aborted move.
57The Complainant paid at least $40 for the taxi cab to view the Respondent’s home for the first visit. This amount is properly regarded as part of the Complainant’s losses.
58The Complainant was hospitalized about 11 days after her rights were infringed. No medical evidence or reports were tendered by the Commission or the Complainant. Ms. Brown testified that the Complainant appeared normal and not unduly stressed when she advised Ms. Brown that she would not be moving. I am satisfied that the Complainant suffered as a result of the discrimination, but I am unable to determine the extent to which the hospitalization is explained by the effect of discrimination, as opposed to other factors. Accordingly, I am unable to award any special damages based on child care expenses incurred while the Complainant was in hospital.
59In any event, no reliable evidence was tendered as to the amount of these child care expenses. The Complainant estimated these as approximately $3,000. Commission counsel requested $800 for child care expenses. That figure finds no support in the documentary evidence or testimony. Even if it had been shown that the hospitalization was precipitated, in whole or in part, by the Respondent’s conduct, which may be the case, special damages based on child care expenses have not been appropriately proven in any event.
60As for general damages, I am of the view that, having regard to the totality of the circumstances, the Complainant is entitled to $2,000 for the loss of her right to be free from discrimination. I do not find the requisite wilfulness or recklessness, so as to justify an award for mental anguish. To be clear, I decline to make an order based on mental anguish, not because the Complainant did not suffer emotional pain and distress, but because I am not satisfied that the Respondent’s infringement was accompanied by wilfulness or recklessness.
ORDER
61Having found that the Respondent infringed the Complainant’s right to equal treatment with respect to the occupancy of accommodation, without discrimination because of disability, the Respondent is ordered to pay the following:
(1) special damages equalling the rent for the first and last month in the amount of $1,730;
(2) special damages to compensate the Complainant for the expenses incurred in paying for the packing and unpacking of her family’s belongings in the amount of $629;
(3) special damages to compensate the Complainant for the expenses incurred in paying for a taxi to attend the Respondent’s premises in the amount of $40;
(4) general damages for the loss of the Complainant’s right to be free from discrimination in the amount of $2,000;
(5) post-judgment interest at the rate specified under the Courts of Justice Act, to commence 45 days from the date of this Decision.
Dated at Toronto this 3rd day of March, 2003
“Mark J. Sandler”
Mark J. Sandler, Member