Human Rights Tribunal of Ontario
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
Albena St. Hill Complainant
-and-
VRM Investments Ltd. and Ray Milosevic Respondents
DECISION
Adjudicator: The Honourable Dennis F. O’Leary, Q.C.
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 ) Prabhu Rajan, Counsel Albena St. Hill, ) Ruth Goba, Counsel Complainant ) VRM Investments Ltd. and Ray Milosevic, ) Howard Levenson, Agent Respondents )
INTRODUCTION
1The complaint of Albena St. Hill that her right to equal treatment without discrimination because of family status has been infringed contrary to Sections 2(1), 9 and 11 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) and that through its Application for Residential Tenancy form, the owner of the apartment, VRM Investments Ltd. displayed before the public a notice indicating an intention to discriminate on the basis of family status, contrary to Section 13(1) of the Code, was heard on November 24, 25, and 26, 2003.
FACTS
2On December 16, 1999 Albena St. Hill was a thirty-two year old single mother with a nine-year old daughter named Nisha Kayla Byfield. For one and a half years prior to December 16, 1999 Ms St. Hill and her daughter had been living at 41 Rosedale Road, Toronto in a basement bedroom with attached bathroom, but with no kitchen. She and her daughter were allowed the use of the basement without charge in return for baby sitting services Ms St. Hill provided to the owners of the house, which owners were her friends.
3In anticipation of finding full time employment as a domestic, for a household in Rosedale, paying $480 per week, the work to commence in January 2000, Ms St. Hill began in September 1999 to look for an apartment for herself and her daughter. On at least five occasions after she had found an apartment that suited her and that she could afford, on telling the landlord she had an eight-year old daughter she was told by the landlord that children were not allowed.
4On December 14, 1999 Ms St. Hill noticed that a one-bedroom apartment at 22 Robina Avenue was advertised in the Toronto Star for rent for $680 per month. She called the telephone number listed in the advertisement and spoke to the respondent Ray Milosevic, manager for the apartment owner, the respondent VRM Investments Ltd. He informed her that a one-bedroom apartment would be available January 1, 2000. Ms St. Hill made an appointment to view the apartment. On December 15, 1999 she viewed the apartment and finding it appropriate for her needs attended the next day at the residence of Mr. Milosevic, filled out the Application for Residential Tenancy form (Exhibit 4) handed to her by Mr. Milosevic and gave Mr. Milosevic a deposit of $260.
5The application form asked for the names and ages of the prospective occupants of the unit. Since she had been refused by landlords in the past because she had a child, she filled in only her name and age, but did not fill in the name and age of her daughter. After Ms St. Hill handed the completed form and the $260 deposit to Mr. Milosevic he wrote on the form “Dec. 16/99 Received $260 Deposit, the balance of $420 by Dec. 23/99 Ray”.
6The apartment she was attempting to rent had one bedroom, kitchen, living room and bathroom. It was then occupied by a young couple with no children. It was in the St. Clair-Oakwood area, right on the subway line and close to a Catholic School that her daughter could attend.
7Mr. Milosevic told Ms St. Hill she would get the key for the apartment when she brought him the balance of the deposit. The week following Dec. 16, 1999, Ms St. Hill tried telephoning Mr. Milosevic several times so as to arrange a time when she could bring him the $420 balance of the deposit. She did not get an answer. He called her before she had been able to get him on the telephone. Ms St. Hill’s daughter Nisha answered the telephone, Ms St. Hill being out. Mr. Milosevic learned from Nisha that she was Ms St. Hill’s daughter and that she was nine-years old. Then Nisha’s aunt, the sister of Ms St. Hill, took over the telephone and spoke to Mr. Milosevic. The sister was only paying Ms St. Hill a brief visit. But somehow Mr. Milosevic thought or pretended to think that the sister, the daughter and Ms St. Hill’s mother (who does not even live in Toronto) would all be occupying the one bedroom apartment with Ms St. Hill. He told Ms St. Hill’s sister he would not rent the apartment to Ms St. Hill and that she was to call him.
8Ms St. Hill called Mr. Milosevic that same evening. He became angry and loud saying she never told him she had a child. She told him her mother does not live here and that her sister was only on a visit. In effect she told him only she and her daughter would be occupying the apartment. He said it did not matter, that there would be no apartment and no return of the deposit. She said she wanted the deposit back. He hung up.
9Ms St. Hill felt very badly about not getting the apartment. Her daughter was very hurt because she had been looking forward to having a home she could have her friends visit. Ms St. Hill was disturbed at seeing her daughter so disappointed.
10At the very least Ms St. Hill thought she should get her $260 deposit back and she went to the police who directed her to the Centre for Equality Rights in Accommodation (“CERA”). She contacted CERA and spoke to one John Fraser. Mr. Fraser spoke to Mr. Milosevic by telephone on January 17, 2000. His purpose in calling was to see if he could convince Mr. Milosevic to rent the apartment to Ms St. Hill. Mr. Fraser made it clear to Mr. Milosevic that only the daughter would be living with Ms St. Hill. Mr. Milosevic told him that he would not rent the one bedroom apartment to a family with children. Mr. Fraser understood him to mean he would not rent the apartment to a mother with a child or a couple with a child. Mr. Fraser testified that Mr. Milosevic was aware it was just the two of them that would be occupying the apartment. Mr Fraser told Mr. Milosevic that he could be violating the Code, but there was no negotiating with him, his mind was made up. Mr. Fraser said that Mr. Milosevic said the apartment was too small for a family with a child and that he would not give the deposit back.
11Shortly after Ms St. Hill was told by Mr. Milosevic that she would not get the apartment or her $260 deposit back, she got a friend Olive Charles to engage Mr. Milosevic in a three way telephone call, with Ms St. Hill listening only and not speaking during the call. In that telephone call Mr. Milosevic told Ms Charles that, “We don’t rent to anyone with children, just to singles and couples.” The comment was in response to Ms Charles telling him she needed an apartment for herself and her son. He had asked for no other details once she told him she had a son.
12Ms St. Hill was not able to move out of the basement until May 28, 2000 when she was finally able to find another apartment for $550 per month. Between January 2000 and May 2000 she had tried repeatedly to find an apartment. Again she was turned down about five times when she made known to the landlord that she had a child, being told they did not rent to people with children. The apartment she did obtain was a basement apartment with kitchen, living room and bath. Ms St. Hill slept in the living room, her daughter in the bedroom.
13If Ms St. Hill had been able to rent the apartment at 22 Robina Avenue she would have been able to walk her daughter to school while she was on her way to work, and then take public transportation to her place of work in Rosedale where she had a 9–5 job as a domestic. Not getting the apartment, and because her daughter attended a Catholic school at Mount Pleasant and St. Clair, she had to expend two extra adult and two extra child tickets, five days a week, to take her daughter to and pick her up from school each school day using the TTC. This was an extra cost to her of $4 for child tickets and $16 for adult tickets, that is to say $20 per week. This expense lasted for five months.
14The agent for the Respondent and the other parties agree, that taking into account Christmas holidays and the March Break there would have been twenty weeks of school between January l and May 28. Ms St. Hill’s total transportation loss through not getting the apartment is $400.
15During the approximately two years that she and her daughter lived in the basement at 41 Rosedale Road, not having a kitchen, Ms St. Hill ordered in fast food three-times a week and stretched its use out for five nights’ dinners for a cost of $30 per week. On the weekends she spent an average of $20 for food in the malls.
16During the period January 1, 2000 to May 28, 2000 while the family where Ms St. Hill worked as a domestic gave her permission to eat for her lunch whatever food was available in their refrigerator, she still bought her lunches two or three times a week at $5 each because she did not like what was available in the refrigerator. Her lunches cost then an average of $12.50 per week. If she had an apartment with a refrigerator she would have brought her lunch when she felt like it.
17Ms St. Hill was allowed to keep milk in the refrigerator in the kitchen of the family whose basement she occupied. She and her daughter were thus able to eat their breakfast of cereal, bread and milk, in the basement. Ms St. Hill was able to make sandwiches of peanut butter and jelly for her daughter for her lunch three days a week. The breakfasts and the daughter’s lunch sandwiches cost $4 per week. For the other two days she gave her daughter $3 or $4 dollars to buy her lunch for an average of $7 per week for those lunches.
18Infrequently, when the owners of the house went away, Ms St. Hill was allowed to use their kitchen. The result is that for twenty weeks between January 1 and May 28, Ms St. Hill did not have a kitchen to make her own meals and do her own cooking.
19Ms St. Hill said the apartment at 22 Robina Avenue was big enough for her and her daughter. The bedroom was big enough for a queen sized bed and a dresser. The kitchen had room for a small table. The school was about two and a half blocks from the apartment building.
20It would appear that without a kitchen, food was costing Ms St. Hill $73.50 per week. With a kitchen Ms St. Hill tells us that food cost her $45 per week, that is to say $28.50 a week less. Over the twenty week period, Ms St. Hill spent $570 more for food then she would have had she been allowed to rent the apartment at 22 Robina Avenue.
21Ms St. Hill did say on re-examination that she spent, while living in the basement, $30 a week for bread, chips, cookies, fruit, peanut butter, jam and juice. She did not say this expenditure changed when she acquired the apartment with a kitchen. Since the purchase of these foods items likely did not change after May 28, 2000 just because she had a kitchen, and the cost of acquiring them, namely $30 a week, is unlikely included in the $45 a week grocery bill following May 28, 2000, I cannot say the $30 per week expenditure for those grocery items represents a loss suffered by being denied the apartment.
DISCRIMINATION BASED ON FAMILY STATUS: REFUSAL TO RENT APARTMENT
22The Code provides as follows:
2(1). Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status, disability or the receipt of public assistance.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part
10(1) “family status” means the status of being in a parent and child relationship.
23I am satisfied on the evidence that Mr. Milosevic refused to rent the apartment to Ms St. Hill because she had a young daughter. That is the evidence of Ms St. Hill, Ms Charles and Mr. Fraser and it remains uncontradicted. Mr. Milosevic did not attend the hearing and declined to let the hearing convene in his room at his nursing home so his evidence could be received.
24Clearly then, Ms St. Hill’s right to equal treatment with respect to the occupancy of accommodation without discrimination because of family status under Section 2(1) of the Code was infringed by Mr. Ray Milosevic when he refused to rent the apartment to her because her daughter would have occupied it with her. That infringement makes Mr. Milosevic liable for breaching Section 9 of the Code.
SECTION 13 OF THE CODE
25The Commission abandoned paragraph 7 of the complaint which reads:
Furthermore, I believe that, through their application form, the owners of the apartment displayed before the public a notice indicating an intention to discriminate on the basis of family status, contrary to section 13(1) of the Human Rights Code, R.R.O. 1990, ch. H.19.
I will say nothing further about that claim.
DISCRIMINATION BASED ON FAMILY STATUS: APPLICATION FOR RESIDENTIAL TENANCY FORM
26The Commission by its pleadings raised another issue namely:
Was the complainant’s right to equal treatment in accommodation because of family status violated by the respondents contrary to sections 2(1) and 9 of the Ontario Human Rights Code when they asked the complainant, by way of the Application, for the age(s) of her prospective co-occupants(s)?
27It is the submission of the Commission that the very asking of a tenant applicant for the age of his or her prospective co-occupant, is of and by itself an act of discrimination under Section 2(1) of the Code without any evidence that the accommodation was in fact denied to the applicant.
28Certainly on the evidence of Ms St. Hill that over a period of six months, on ten occasions when she found an apartment that suited her and she could afford, she was turned down as a tenant when she disclosed she had a nine-year old daughter, I could conclude that perhaps many landlords are prepared to violate Section 2(1) of the Code and deny accommodations to families with a young child.
29I feel there is great merit in the argument of the Commission that a landlord only asks the question as to the age of the prospective co-occupant so he can deny the application if the answer discloses the prospective co-occupant to be a child or perhaps an elderly person. While it might be argued a landlord needs to know the ages of co-occupants in his building in case of fire and for numerous other reasons, such information can be acquired by the landlord after apartment units have been rented.
30It would appear, at least on the evidence before me, that any landlord, intending to avoid discriminating under Section 2(1), will not ask the age of prospective co-occupants. Likewise on the evidence before me a tenant applicant with a child seeing or being asked the question, “What is the age of the prospective co-occupant” believes without more that he or she will not be accepted as a tenant, if the question is answered.
31That is the essence of the argument of the Commission. The question itself becomes an act of discrimination. Nothing more need be done by the landlord. The tenant believes with good reason on seeing the question that the apartment will not be rented to him or her.
32I have no difficulty in finding and I do find that in this case the mere asking of the question as to the age of the prospective co-occupant was prima facie an act of discrimination under Section 2(1) of the Code. Perhaps I should add that I can think of situations where the mere asking of the question would not amount to discrimination under Section 2(1) of the Code. A landlord might be able to establish that he regularly rented to mothers or fathers or couples with a child and that the application form was one habitually used without in fact leading to discrimination. It would appear however that the asking of the question leads to a prima facie case of discrimination being established.
33I point out that no evidence was called or submissions made by way of denial of the proposition that the simple asking of the question as to the age of the prospective co-occupant is discrimination under Section 2(1). The Respondents called no evidence and agreed without objection that an order go requiring the deletion of the question as to age of the prospective co-occupant from their Application for Residential Tenancy form.
Remedy
34Section 41 of the Code reads in part:
41(1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part 1 has been infringed and that the infringement is a contravention of Section 9 by a party to the proceeding, the Tribunal may, by order,
(b) direct the party 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.
35Ms St. Hill suffered the following monetary losses:
Deposit not returned $260 Extra TTC tickets 400 Extra cost of food 570 $1,230
36There is no doubt Mr Ray Milosevic deliberately, that is to say wilfully, denied the apartment to Ms St. Hill because she had a nine-year old daughter who would live with her if Ms St. Hill became a tenant. But did Ms St. Hill suffer mental anguish as a result?
37Ms St. Hill was upset when she did not get the apartment and certainly a large part of the upset was caused by the fact Mr. Milosevic refused to return her $260 deposit. Indeed she went to the police for their help in recovering the $260.
38However she was disappointed and hurt by being refused the apartment because she had a nine-year old daughter. She was disturbed at seeing her daughter disappointed as well. She felt what had happened to her was unfair and wrong. It meant of course that for a further five months she and her daughter had to get by without a stove and refrigerator. She could not cook, had to eat take-out fast foods, eat meals on the bed and continue to live in sub-optimal conditions. She had the embarrassment of having to tell the persons who owned the home on Rosedale Road that she had to stay on, when they had made arrangements for a live-in nanny to occupy the basement. She had to continue with the inconvenience of accompanying her daughter to and from school by way of TTC.
39In my view however all this does not mean that she suffered mental anguish. Mental anguish means more than hurt feelings, disappointment, embarrassment and feelings of being treated unfairly. The Random House dictionary describes anguish as follows, “excruciating or acute distress, suffering or pain, syn. of agony, torment, torture”. Nothing Ms St. Hill said suggests her distress was excruciating or acute. She determined to and did put her disappointment behind her and went about looking for another apartment.
40As to the power of the Tribunal to award general damages under Section 41(1)(b), I expressed my view in Kearsley v. St. Catharines (City) (2002), 2002 CanLII 46502 (ON HRT), 42 C.H.R.R. D/304, as follows at para. 54:
The words in Section 41(1)(b) “direct the party to make restitution, including monetary compensation, for loss arising out of the infringement” suggest to me that the Board of Inquiry is only empowered by those words to order restitution in the amount of the monetary loss suffered because of the infringement, that is to say the special damages suffered because of the infringement. Were it not for the decision of the Divisional Court in The Shelter Corporation et al. v Ontario Human Rights Commission, (2001) 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111, I would not have thought that those words permit as well an award of general damages, being inclined to the view that when the legislature intended to provide for an award for mental suffering, it spelled it out, but limited the award to “$10,000” for “mental anguish” where the respondent has been wilful or reckless, making it unlikely the legislature intended to provide for an award of unlimited general damages for lesser mental suffering when the respondent has been only negligent.
41Accepting that an award of general damages can be made by way of “monetary compensation for loss arising out of the infringement” of the rights of a complainant, quite apart from any award for mental anguish, I must decide on the amount of such award in this case.
42Ms St. Hill had to continue taking the trips twice a day to her daughter’s school. She had to continue her search for an apartment. She had to live with the discomforts associated with her basement apartment. She had to bear the knowledge she was being treated unfairly. I award her $5,000 in general damages for the infringement of her right to be free of discrimination because of family status with respect to accommodation.
43Mr. Ray Milosevic is the directing mind of the corporate respondent and so his acts are its acts. Both respondents are then responsible for the infringement of Ms St. Hills’ right under Section 2(1) of the Code.
Order
44I order the following:
(1) The respondents are to pay Albena St. Hill $1,230 for special damages and $5,000 for general damages for a total payment of $6,230.
(2) The Respondent VRM Investments Ltd. is to delete from its Application for Residential Tenancy form any question asking the age of a prospective co-occupant and any question the answer to which might disclose the age of that person.
(3) The Respondents are liable jointly and severally for the award of $6,230.
(4) The award of $6,230 shall bear pre-judgment simple interest from January 1, 2000 and post-judgment simple interest from the date of this Order at the rate as provided for in the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended.
Dated at Toronto, this 27th day of January, 2004.
The Honourable Dennis F. O’Leary, Q.C. Member