HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Rosemary Flamand
Complainant
-and-
DGN Investments, Marcel Lacasse and
Normand Guenette
Respondents
DECISION
Adjudicator: Mary Ross Hendriks
Date: April 8, 2005
Citation: 2005 HRTO 10
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
E-mail hrto.registrar@jus.gov.on.ca
Website www.hrto.ca
APPEARANCES
Ontario Human Rights Commission ) Eddie Taylor, Counsel
Rosemary Flamand, Complainant ) On her own behalf
Marcel Lacasse, ) On his own behalf
Normand Guenette and ) On his own behalf
DGN Investments, Respondents ) Marcel Lacasse, as agent for DGN
) Investments
INTRODUCTION
1Ms Rosemary Flamand (the “Complainant”) is of Native ancestry. In her Amended Complaint, she alleged that Mr. Marcel Lacasse, Mr. Normand Guenette (the “Personal Respondents”) and their partnership, DGN Investments (the “Partnership Respondent”) violated her rights under the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). In particular, she alleged that her right to equal treatment with respect to occupancy of accommodation without discrimination based on ancestry has been violated, contrary to ss. 2(1) and 9 of the Code.
2The Ontario Human Rights Commission (the “Commission”) referred the Amended Complaint, dated January 8, 2004, to the Tribunal for a hearing on the merits, on April 20, 2004.
3The Complainant alleged that the violations of her rights under the Code took place during the course of her search for an apartment in the City of Greater Sudbury during June 2002. She alleged that she viewed the apartment that the Respondents had for rent, and subsequently made arrangements to meet Mr. Lacasse to give him an agreed upon deposit. The Complainant alleged that when they met, he commented that she was Native, made a derogatory comment about renting to Native People, and that she was denied the apartment.
4Mr. Lacasse admitted that he expressed surprise when he realized that the Complainant is Native, but testified that this was because he thought her name sounded French-Canadian on the telephone. He categorically denied the allegations made by the Complainant that he made a derogatory comment about Native People, that he refused to take her deposit, and that he refused to rent her the apartment because she is Native. He maintains in his pleadings that their conversation was “business-like but very respectful.”
5Rather, Mr. Lacasse stated that he simply met with the Complainant in order to conduct an interview, that he had no papers with him, and thus had no intention of renting the apartment to anyone at that time. He said that he advised her that other parties were also scheduled to view the apartment. In particular, he maintained that there were “2 [sic] girls from out-of town who had expressed a serious interest in the apartment and I was still waiting to hear from them, as they had promised me a deposit for the apartment.” Moreover, he said that he had asked the Complainant to provide him with her references when they met, and that she had failed to call him back.
6The Respondents questioned the Complainant’s history as a tenant, and whether she had given two months notice to her then landlord under the Tenant Protection Act, 1997, S.O. 1997, c. 24, as amended. They claimed that she said she did not have to give her landlord notice because he had failed to maintain the property adequately. The Respondents alleged that during their conversation Mr. Lacasse had advised her to the contrary. The Respondents maintain that the Complainant was not eligible to enter into any other tenancy agreement without terminating the tenancy agreement she was in, on notice to her then landlord. In their final written submissions, they characterized her as approaching them “under false pretenses,” and added, “This was fraudulent behavior [sic] on her part.” [Emphasis of the Respondents]
7The Respondents also questioned the Complainant’s version of the timing of key events, and maintained that the Complainant and her witness were giving unreliable evidence as the basis for this Complainant. They stated in their final submissions that this was, “yet another example of exploitation and fraud by Ms. Flamand.”
8The hearing on the merits was held in Sudbury on January 24 and 25, 2005.
9At the close of the hearing, after hearing oral argument from counsel for the Commission, and after receiving the Commission’s Brief of Authorities, the Tribunal provided all parties with the opportunity of either making oral closing submissions or filing additional final written submissions and authorities. Counsel for the Commission declined to file written submissions, preferring to rely on his closing oral submissions. The Complainant was absent due to her son’s illness, and so the Tribunal was not advised as to her preference with respect to her own closing submissions. The Respondents chose to file their final submissions in writing. The Tribunal permitted the Respondents and the Complainant to file their written submissions by February 14, 2005, and allowed the Commission until February 21, 2005, to reply to any new issues raised. The Tribunal received the Respondents’ final written submissions on February 11, 2005, and no separate final submissions from Ms Flamand. The Commission filed its brief written response to the Respondents’ final submissions on February 18, 2005.
PRELIMINARY MATTERS
10There were a number of preliminary matters in this hearing.
11First, Mr. Lacasse advised the Tribunal that he was hard of hearing, in his correspondence to the Registrar dated November 27, 2004. As a result, the Tribunal wrote to him on December 1, 2004, and confirmed with him that it was granting his request to have all parties repeat any parts of the conversation that he was unable to hear. In the letter of December 1, 2004, the Tribunal also said that it would repeat back any questions or statements the parties make, if he indicated that he did not hear them properly. Since he was not seeking any further type of accommodation, such as American Sign Language (“ASL”), the Tribunal confirmed this in its correspondence. At the outset of the hearing on the merits, the adjudicator asked him if he could hear her, and he said yes. He added that his difficulty was with high and low pitches, something that a hearing aid would not resolve. The Tribunal was satisfied that the planned accommodation was sufficient and proceeded to hold the hearing on the merits. Throughout the hearing on the merits, the Tribunal repeated some of the testimony given to Mr. Lacasse, and the Tribunal was satisfied that the planned accommodation met his needs.
12At the outset of the hearing on January 24, 2005, both Mr. Lacasse and Mr. Guenette appeared before the Tribunal. Mr. Guenette had failed to file any pleadings or make any disclosure to the other parties, despite having been advised in writing to do so by the Tribunal prior to the commencement of the hearing, on September 9, 2004 and again on November 12, 2004, after he failed to participate in the pre-hearing conference call of November 10, 2004, despite being on notice of same. In its correspondence of November 12, 2004, the Tribunal accepted Mr. Lacasse’s apology for not having made disclosure or filed his pleadings on time, and gave all Respondents until November 17, 2004, to make disclosure and file pleadings, on a peremptory basis.
13Mr. Lacasse did make disclosure and filed his pleadings, but Mr. Guenette did not, and provided no explanation. The Tribunal’s correspondence to all parties of November 25, 2004 noted that the pleadings were now closed, and that Mr. Guenette had not filed any. When he appeared in person, the Tribunal advised Mr. Guenette that he would be given the opportunity to testify since he was named as a party to this action, if he wanted to do so. He declined.
14Counsel for the Commission requested at the outset of the hearing that the Tribunal make an order excluding witnesses from hearing the testimony of others. The Respondents did not object to this request. The Tribunal granted this request and made an oral order directing same.
15Mr. Lacasse sought the Tribunal’s permission, as he put it, to try to reach one of the “two girls,” to whom he said he had rented the apartment instead of the Complainant, to ask them to testify. Counsel for the Commission objected, because the Respondents never indicated that they would be calling any witnesses, and had offered no witness statements to the other parties in accordance with Rule 47 of the Tribunal’s Rules of Practice. Nevertheless, the Tribunal advised Mr. Lacasse that he could try to reach them by telephone during the mid-morning break on the first day of the hearing, and that if they were willing to testify, they could attend the hearing the next day, and do so.
ISSUES
16The Tribunal considered the following issues:
(1) Was the Complainant’s right to equal treatment with respect to occupancy of accommodation without discrimination based on her ancestry infringed by the Respondents, contrary to ss. 2(1) of the Code?
(2) Was the Complainant’s right to equal treatment with respect to occupancy of accommodation without discrimination based on her family status infringed by the Respondents, contrary to ss.2(1) of the Code?
(3) Do the acts of the Personal Respondent Mr. Lacasse, as a partner of the landlord, DGN Investments, give rise to any liability under the Code for himself or DGN Investments?
DECISION
17The Tribunal finds that Mr. Lacasse violated Ms Flamand’s right to equal treatment with respect to occupancy of accommodation based on her ancestry and on her family status contrary to the Code. The Tribunal finds the Respondents jointly and severally liable to the Complainant.
LIST OF WITNESSES
18The Tribunal heard evidence from four witnesses, being the Complainant, another witness testifying on her behalf, Ms Symes, one of the Personal Respondents, Mr. Lacasse, and his other former tenant to the apartment, Ms Blair, as follows:
Rosemary Flamand, Complainant, testified on January 24, 2005;
Patricia Symes, witness, testified on January 24, 2005;
Marcel Lacasse, testified on January 24, 2005; and
Kharren Blair, witness, testified on January 25, 2005.
SUMMARY OF EVIDENCE
Rosemary Flamand
19Ms Flamand is a Native woman, who was born on Manitoulin Island and has been a resident of Sudbury “on and off since 1985.” She has one son, who is eleven years old, and her current marital status is “common law.”
20Ms Flamand said that the events described in her Amended Complaint stemmed from her search for a new apartment in June of 2002. She had been renting an apartment at 26 Concession Street, but she wanted to move so that she could be closer to Cambrian College, and upgrade her education.
21She conducted her apartment search by going through a newspaper, called the “Bargain Hunter,” in which she found an advertisement that interested her (Exhibit 3). This issue of the “Bargain Hunter” was dated, “Week of July 10 TO June [sic] July 16, 2002.” The advertisement stated as follows:
Large 2 storey 2 bdrm apt. 77 Barrie St, avail immed, heat, hydro, fridge, stove, storage, large yard, laundry hook-ups $750/mth, call Marcel…
22Ms Flamand testified that she called, and spoke to Mr. Lacasse who gave her the name and telephone number of a woman named, “Susan,” who was the current tenant living there. She stated that Mr. Lacasse told her that Susan could show her the unit.
23Ms Flamand knew that part of Sudbury well, having lived there previously, and found it suitable for her purposes. She called Susan and made arrangements to view the apartment on a Friday. Ms Flamand said that Susan had to cancel, because she was running late for her daughter’s birthday party, and so they agreed to meet on Saturday instead. Ms Flamand testified that Susan showed her the apartment on June 23, 2002. Ms Flamand stated that Susan, “ was happy to rent it because she had a job in Barrie and Mr. Lacasse had told her that if she could rent it right away, that she could go.”
The Deposit
24Ms Flamand said that she told Susan that she was interested. Ms Flamand stated that she called Mr. Lacasse back, told him that she was able to give him a deposit, and made arrangements to give him the deposit on June 24, 2002 at 6 p.m. Ms Flamand testified that her “ride had fallen through,” which is why they had agreed to meet at 6 p.m. Her evidence is that she had agreed to deliver to Mr. Lacasse the deposit of $100, and explained, “$100 to hold it until I moved in and made full payment on the first of the next month.” She added that the rent would be $750 per month, and that the length of the lease was one year.
Her Ride to the Meeting
25Ms Flamand testified when her ride fell through that day, she called Patricia Symes to give her a ride. In her evidence, Ms Flamand said that she had told Ms Symes that she had already viewed the apartment, that she liked it, and that she was going to meet the landlord to give him a deposit and sign a year’s lease that evening, and that she needed a ride.
26Ms Flamand said that Ms Symes picked up both Ms Flamand and her son and went to Minnow Street to meet Mr. Lacasse.
27When she arrived, Ms Flamand said that she knocked on the door and that no one was there. She let her son play on the grounds, and stood outside Ms Symes’ car, chatting with her, and smoking a cigarette.
"I Didn't Know You Were Native" Incident
28Ms Flamand testified that a vehicle pulled up, and Mr. Lacasse asked her if she was Rosemary Flamand, and she replied, “yes”. She introduced herself asked him if he was the landlord. She testified that he then said, “I didn’t know you were Native.”
29Ms Flamand said that she told Mr. Lacasse that she had the deposit. Mr. Lacasse then asked her “Who’d live there?” and she said, “Myself and my son.”
30Ms Flamand testified that Mr. Lacasse, “said the comment,” which she alleged was, “Once you rent to a couple of Natives, fifteen Indians come behind.”
31Ms Flamand said that her reaction to his comment was one of “shock” and added, “I didn’t know what to say.”
Refusal to Accept the Deposit
32Rather than accept her deposit and allow her to sign the lease, Ms Flamand alleged that Mr. Lacasse then said that he had other appointments, and that he had to show it to other people. She said that Mr. Lacasse asked her for references, which she did not have with her.
The Reference Check Incident
33She testified that she called him back later to provide him with her references, but that he “didn’t return the call.” She called him again, and he allegedly said that he “couldn’t be bothered phoning long distance, it was a waste of his time and money.” He allegedly added that he was now looking for a married couple to rent the apartment. He allegedly explained to her his rationale, by saying that he had had problems in the past with other tenants and the Children’s Aid Society, and she was also a single parent.
34Ms Flamand testified that during this telephone call, which took place in late June, 2002, she believed on June 24th, she realized for the first time that Mr. Lacasse was looking for a married couple to rent the apartment.
Her Search for Other Accommodation
35Ms Flamand said that she felt quite upset, because she had to find a new place to live within six days, now that she realized that Mr. Lacasse would not rent her the apartment. She spoke to her landlord on Concession Street, and offered him another $800 so that she could stay, even though she had already packed her belongings.
36Ms Flamand testified that she found another place to live on Bryce Street, but that it had some wiring problems and although she technically moved in on August 1st, she did not actually take possession until September 1st, so that the landlord could repair the premises. During the month of August, Ms Flamand stayed with friends who were living in the area. In order to secure this new apartment without a car, she asked a friend to drive her around so that she could visit various advertised apartments, and she paid her friend “little by little” to compensate her for her time and gas money.
37When asked how this experience made her feel, she expressed a quiet sadness. She said that she had never been discriminated against before because of her Native ancestry, and that after this incident, “I felt, being Native, I wouldn’t be able to get places. That’s how it made me feel.”
Discussion of Her Handwritten Notes
38Ms Flamand identified her handwritten notes made related to her Complaint (Exhibit 4). She testified that when she called the Commission to report Mr. Lacasse’s comments, they had advised her to make notes, and she did, commencing on June 24th, 2002. The first entry was dated Friday, June 21st, 2002, and stated that she, “found ad in the Northern Life also Bargain Hunter. Called Landlord about apt for rent at that time.” Her seven pages of handwritten notes mirrored the oral testimony she had already given, and were shown to her by Commission counsel as an aide memoire.
39After reviewing her handwritten notes, Ms Flamand testified that she had paid $400 as a deposit in August, 2002 to her new landlord on Concession Street while she stayed on Bryce Street with friends, and that she began to pay her new landlord on September 1, 2002. Counsel for the Commission apologized for the error in paragraph 2 of the Commission’s pleading, and said that rather than claim two months rent, they were claiming one month’s rent, and that the difference means that this portion of her claim for Special Damages ought to be $50 and not $100.
The Complainant's Statement
40As a party in her own right, Ms Flamand said that Mr. Lacasse had left her a message that she would receive the apartment, and that he did not give it to her. She testified that, “I’d never been discriminated against before. I felt hurt and insulted.”
Cross-Examination of Ms Flamand
41In cross-examination, Ms Flamand was asked if she had registered at Cambrian College. She responded, “yes, but it didn’t go through, because I couldn’t find an apartment closer to the College.” Later on in cross-examination, Ms Flamand said that “I was in the process” of registering to go to school in September.
42When asked when the apartment was available, she replied that she had viewed it on June 21st. During cross-examination, she was asked if the ad in the Bargain Hunter said when the apartment was available, or if it did not specify. She said that she thought it was available, and Mr. Lacasse said it was not available until August.
43When asked how she was going to look after her son while in College, counsel for the Commission objected. The Tribunal ruled that this question had no relevance to the issues before it, and directed Mr. Lacasse to proceed.
44Mr. Lacasse asked Ms Flamand if she had given notice to her prior landlord. Ms Flamand responded that she had given notice, and said, “I was looking for an apartment to go back to school for September.”
45Mr. Lacasse asked Ms Flamand, “Why didn’t I take your deposit?” She replied, “I figured because of your statement. On the phone, you said if I was interested in the apartment, I can have it whatsoever [sic].”
46Mr. Lacasse asked Ms Flamand if he had told her that “other people had viewed the apartment,” and she replied that he had told her to call Susan, the tenant, because, “she had a job in Barrie, and if she could get the apartment rented, he was allowing her to go ahead.” Ms Flamand specifically denied that Mr. Lacasse mentioned that he had other possible tenants for the premises.
47When asked if they had discussed anything about the apartment while they were there, she testified that he told her she would have to sign a year’s lease.
48Mr. Lacasse asked Ms Flamand if she took his initial comment when they first met, “I didn’t know you were Native,” as an insult. She replied that the meeting was to sign a lease. During this exchange, Mr. Lacasse denied wanting a deposit at this time.
49Mr. Lacasse asked her, “Are you not proud of being Native?” Counsel for the Commission objected and said the question was irrelevant and insulting. The Tribunal did not allow the question.
50Mr. Guenette asked her, “Is the word ‘Native’ an uncommon word?” Ms Flamand replied, “It was the way it was put.” Otherwise, she said it was not an uncommon word. He had no other questions for her.
51By way of reply, Ms Flamand stated rhetorically that she did not understand the comment he made about “Native” nor “where he was coming from.”
Patricia Symes
52Ms Symes was called as a witness for Ms Flamand.
53Ms Symes testified that she has known Ms Flamand for seven or eight years, and that Ms Flamand had been a friend of Ms Symes’ son. She testified that she has not seen Ms Flamand since the fall of 2003. Later on, she testified that, “I hadn’t seen Rose for some time.”
54During her testimony, Ms Symes said that in June, 2002, she had picked up Ms Flamand, and driven her to the apartment building, because Ms Flamand had called her “at the last minute,” and asked her if she would drive her to the apartment to see the landlord. She said it was “around supper time.”
"When You Rent to Natives" Incident
55Ms Symes testified that Ms Flamand had told her that she had arranged for a different ride to the apartment building, but that it had fallen through. She said that the purpose of this meeting was for Ms Flamand to give the landlord a deposit.
56Ms Symes said that she drove Ms Flamand and Ms Flamand’s son to the apartment’s address, and waited. She said that the landlord drove up, and that Ms Flamand was standing outside of the car, near her passenger door.
57Ms Symes said that the man walked up to Ms Flamand, and he said, “Rose?” Ms Flamand replied, “Yes”. Ms Symes said that the man then said to Ms Flamand, “I didn’t know you were Native.” They spoke a few minutes, and then he said something to Ms Flamand, and then he said he could not show her the apartment.
58Ms Symes testified that she heard Mr. Lacasse ask Ms Flamand, “How many people would be living there?” Ms Symes said that Ms Flamand replied, “Myself and my son.” Ms Symes said that Mr. Lacasse then responded, “The reason I’m asking is because…something about…when you rent to Natives, two move in and the next thing you know, you have fifteen Indians living there.”
59Ms Symes said that Ms Flamand simply replied, “No, just my son and I.” Ms Symes said that Mr. Lacasse replied that the tenant was not home, and that he could not show the apartment again and could not take the deposit, and said that he needed to check her references. Ms Symes, Ms Flamand and her son left at this time.
60Ms Symes said that both Ms Flamand and she were upset, and that Ms Flamand was “very upset.” Ms Symes testified that she was upset because of “what he had said to her – it was because she was Indian.”
61Ms Symes said that Ms Flamand had gone there with the understanding that it was to give a deposit on the apartment since she had seen it before.
62Counsel for the Commission showed Ms Symes a handwritten letter, dated June 28th, 2002, which she identified as her own signed statement (Exhibit 1). Her handwritten statement was consistent with the testimony she had already provided.
63During cross-examination, Ms Symes said that she was behind the wheel of her car when Mr. Lacasse and Ms Flamand had their conversation. Ms Symes said that Ms Flamand stood beside the driver’s side of the car, and that Mr. Lacasse was on her left side. She could not recall if they shook hands when they met.
64In her testimony during cross-examination, Ms Symes said that Ms Flamand had “got out of the car to have a cigarette and her little boy wanted out,” and that Ms Symes does not smoke in her car. She added that Ms Flamand was between two and three feet away from her, smoking. She said that she could see Mr. Lacasse in her rear view mirror, and that he was close to Ms Flamand, standing in front of her.
65When asked how she knew Ms Flamand, Ms Symes explained that Ms Flamand and her son “went out for a while” but that they no longer went out together, and that she has no business relationship with Ms Flamand. She added, “I just liked her.”
Marcel Lacasse
66Mr. Lacasse is a partner of DGN Investments, along with Mr. Guenette. He stated in his Response that he has been a landlord for thirty-five years. In his testimony, Mr. Lacasse maintained he had been a landlord for thirty years, and then corrected himself and said thirty-seven years. Mr. Lacasse has been active in Sudbury’s community, as a member of the local Lions Club and the Knights of Columbus. He was adamant that he was not a “racist person,” and stated that he currently has other tenants in a different apartment who are of Native ancestry. Moreover, he said that he has owned a camp on the Whitefish Indian Reserve for eighteen years.
67Mr. Lacasse testified that he received a telephone call from Rosemary Flamand to view his apartment on Barrie Street. He said, that at that time, in order to save himself time, he told her to call the tenant, gave her the tenant’s name and telephone number, and asked her to view the apartment “beforehand.” He added that his reasoning was that, “I don’t waste time on an interview to decide if she’d be the tenant or not, because I had other tenants at the time making applications to take it.”
68Mr. Lacasse added, “I had not received any deposit from the out-of-town couple, they had already seen the apartment. They were two girls going to Laurentian University.” He said that they had called him the night after they saw it, and said they wanted it and a deposit was on the way.
69Mr. Lacasse testified that he told them that they would need a reference letter. He asked the Tribunal for its indulgence in entering a letter that he said indicated he would not accept a deposit on this apartment. Counsel for the Commission objected, arguing that the Respondents failed to make disclosure of this letter. The Tribunal ruled that it had explained the purpose and nature of disclosure to all parties on the telephone, but agreed to accept the document as Identification Document #1, and that Mr. Lacasse could try to have its author attend the next day to testify as to its contents and why he or she wrote it.
70During his testimony in chief, the Tribunal accepted Mr. Lacasse’s telephone records (Exhibits 5 and 6). However, Mr. Lacasse never referred to them during his testimony and their relevance has not been established.
71In his evidence, Mr. Lacasse disputed that he met with Ms Flamand on the evening of June 24th. He maintains they met on July 24th. He said it was a “Monday night, very clear, a beautiful day.” When asked why he waited until the hearing to dispute the date of their meeting, he said, “It never dawned on me then that the dates were wrong.” He said that he replied to the Commission’s investigator without checking his records, and said it was “probably just confusion.”
72Mr. Lacasse testified that he entered the driveway, which was L-shaped, and that while they were parked at the foot of the L, he was parked at the entrance of the L. He said that the building contains five apartments.
73Mr. Lacasse said that when he stepped out of his car, “Mrs. Flamand was sitting in the rear right seat of the car with the door open.” He said that when she saw him, she asked if he was the landlord, and that he asked her if she was Rosemary. He said that she said, yes, and that they shook hands. He cannot recall if he introduced himself as Marcel or as the landlord. He admitted that at this point, he said to her, “Hi, I didn’t know you were Native.” He testified that he said that remark, because, “I thought she was a French-Canadian woman, a white woman, from our conversation on the phone.” He maintains that the name “Rosemary Flamand” is a “very French-Canadian name, as far as I’m concerned.” He added, “it has nothing to do with racism.” During cross-examination, when asked why he said, “French-Canadian white woman,” he replied, “I don’t know why I say these things. There’s no reason, it just comes out that way.”
74He maintained that he stayed on the right-hand side of the car, and that she had closed the car door when she came out to greet him. He said that all the car windows were closed, and that only the driver’s side window was open. He said that while he stayed on the right-hand side of the car, Ms Flamand stayed on the left side of the car, close to the driver’s side. He assumed she stood where she did in order to “keep an eye on her son at the same time,” who was playing beside the building.
75Mr. Lacasse said that at that time, he asked her if she wanted to re-view the apartment. He said that she declined, and said, “No, I’ve already seen the apartment and I like it.” Mr. Lacasse said that at that point, he told her that the tenant was not home, and that if she wanted to re-view it, they needed to wait until the tenant arrived home.
76Mr. Lacasse said that he asked Ms Flamand if she had given two months notice where she was living at the present time. He said that she responded, “No”. He asked her why she had not, and he said that she told him that she did not have to do so. He said that she added that her landlord did not repair the problems she was experiencing and that this included a leaking roof over her bed, and if it rained, she would wake up in the morning and her bed was all wet. He also said that she complained that her garage had a leak, and that she was working on her truck and that is why she had to be brought out by her friend because her vehicle was down.
77Mr. Lacasse testified that Ms Flamand had told him that she wanted to straighten out her life, go to Cambrian College, and that at that point, “she told me” that she would need a babysitter or a nanny. He said that he replied by saying that if he did rent the apartment to her and her son, “I don’t want to find out later that there are more than you and your son living there.”
78Mr. Lacasse maintained in his evidence that as the landlords, the Respondents pay the “heat, hydro and water,” and “that the more people living there…”, such as a nanny, increases the expenses, since “a nanny usually stays in with you.” He added, “If she had not mentioned this, I would never have said that.”
79Mr. Lacasse said that Ms Flamand offered him a deposit, and he said that he could not accept a deposit because, “I already had a tenant that might be sending me the deposit that saw the apartment prior to her and they wanted it.” He said that those tenants were Kharen Blair and Nancy Desrochers.
80During his cross-examination concerning the two women who became the tenants of this apartment, Mr. Lacasse admitted that he had not met with Ms Blair and Ms Desrochers and had only spoken to them over the telephone, before they rented the apartment. He said that since he had not met them, they “could’ve also been two Natives as far as I’m concerned, I don’t know.” However, this testimony was in direct conflict with his earlier evidence given in chief, set out in paragraph 68, in which he said that, “they had already seen the apartment.”
81According to Mr. Lacasse, after he had refused to take Ms Flamand’s deposit, while she was at the apartment building, he asked her for her references, and she said that she did not have any with her but that she would call him back and give them to him. He stated, “I don’t recall if she called me back later at all, my memory goes, it’s been over a year.” During cross-examination, when asked if he told the Commission’s investigator that Ms Flamand did not call back, he said he could have said that and could not recall what he told the investigator. When shown his written response to the investigator, which he identified as his own, it confirmed that he had told the investigator that Ms Flamand had not called him back. Mr. Lacasse said that at this time, he could not recall the answer, and felt that this line of questioning was “technical” and said that he was not a lawyer.
82Mr. Lacasse states that his meeting with Ms Flamand lasted between fifteen and thirty minutes, that there was “no malice” between himself and Ms Flamand, and denied that she left “unhappy whatsoever.” Mr. Lacasse stated that Ms Flamand, her son, and her friend left, and that he stayed behind, because another party was supposed to see it at 8 p.m. and he was meeting with them. He said that the other potential tenant “never showed up” at 8 p.m. He said he went home, and reached his home by 9 p.m.
The Deposit from the Tenants
83During his cross-examination, Mr. Lacasse testified that he received the deposit from the ultimate tenants, Ms Blair and Ms Desrochers, on August 2, 2002.
84Mr. Lacasse then seemed unsure whether or not Susan was home when he met Ms Flamand. He admitted during his cross-examination that even if he were correct that the evening he met Ms Flamand was in July and not June 2002, that he had not yet received a deposit from Ms Blair and Ms Desrochers at that time. He testified that his then tenant, Susan, had shown the apartment to Ms Desrochers, “probably three or four days before Rosemary saw it.”
85Mr. Lacasse said that Susan, “showed up about fifteen minutes after he began talking to Rosemary,” which was why he drew her in his sketch that was in his pleading. He maintained that Susan was a witness to this conversation. Then he added that, “Susan drove into the driveway while we were still discussing it.” In reference to his sketch that he included in his pleading, he said, “If I hadn’t drew [sic] the picture, I would’ve forgotten that she’d driven in.”
86Mr. Lacasse testified that he waited until he received a potential tenant’s application, before he conducted an interview, and then he checked their references. When asked if that interview could be on the telephone, he said, “it could partly be on the telephone.” He added that with Ms Desrochers and Ms Blair, “I spoke to their parents on the telephone who answered me that they’re going to University.” He said that he wanted “an assurance from their parents,” that “they were coming.” He said that they had called him on his cell phone, and he had directed them to Susan who showed them the apartment. He said that Susan had said they were “both good candidates.” However, he admitted during cross-examination that he had advised the Commission’s investigator that he said then, “I always want to meet people before I rent to them.” During his testimony, he agreed he made this statement, “but there are exceptions,” he said.
87Mr. Lacasse said that he has other tenants who are Native. When asked who, he replied, “I don’t have anyone there now, had a girl from Petawawa. She is half whatever, I don’t know what she is.” He had not met her before he rented her an apartment. When asked what “half whatever” meant, he said, she was a “mixture,” but then he corrected himself and said she was from South Porcupine. With respect to Ms Flamand, Mr. Lacasse said that he “doesn’t think I made her race an issue.” He contended that he meant no malice by referring to her as a Native, and said that the word “Native” is found in the lyrics to Canada’s national anthem. He reiterated that he has a camp on an Indian reserve.
88When asked if, based on Ms Flamand’s testimony, he recalled a conversation with Ms Flamand in which she offered him her references and he allegedly said that he wanted to rent the apartment to a married couple, he first said, “I don’t remember that,” and then asked to clarify his statement, by saying, “I don’t remember that phone call taking place.” Later on, when asked if he ever told Ms Flamand that he wanted to rent the apartment to a married couple, he replied, “I don’t recall.” However, Mr. Lacasse was certain that when he rented the apartment to Ms Blair and Ms Desrochers, that he had not told those two young women that he only wanted a married couple as his tenants. He was also certain that he did not tell Susan that he only wanted the next tenants to be a married couple.
89Mr. Lacasse admitted that when he heard Ms Flamand mention the need for a babysitter or nanny, he assumed that she meant a live-in caregiver, since she had not said that.
2002 Calendar
90At the outset of the hearing on January 25, 2005, counsel for the Commission submitted a photocopy of the calendar for 2002, and asked the Tribunal to rely upon section 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 to admit it. The Tribunal did so, and marked it as Exhibit 9.
91The Tribunal noted that the Monday night in June 2002 fell on the 24th, but the Monday night in July fell on the 22nd.
Kharren Blair
92Ms Blair was called as a witness for the Respondents. She identified the letter marked as ID # 1, as a letter which she wrote to Mr. Lacasse on July 29, 2002, and it was marked as Exhibit 7.
93In this letter, marked as, “Soon to be tenants, Kharren Blair with her son, Alexander Kurt Blair-Corriveau and Nancy Desrochers personal background history,” Ms Blair began her letter by saying, Hello, my name is Kharren Blair.” She described her own educational pursuits and those of her roommate. In it she stated, “Nancy Desrochers is my roommate who [sic] you have spoken to many of times, especially during the time of depositing a deposit for claim of the apartment.” The letter did not provide any details with respect to the timing of those calls.
94When asked prior to sending this letter, how many times she had spoken to Mr. Lacasse on the telephone, she could not recall, but believed it was more than once, because she said, “I wanted to secure a place for me, my roommate and my son.” During her testimony, she identified the Residential Tenancy Agreement executed between herself, Nancy Desrochers, and D.G.N. Investments, dated July 29, 2002 at the outset (Exhibit 8).
95On the last page of this tenancy agreement, there were a number of different dates. Mr. Lacasse signed the agreement on July 29, 2002, but Ms Blair and Ms Desrochers signed it on August 30, 2002. During her testimony, Ms Blair confirmed that she signed the agreement on August 30, 2002. She said, “that’s when we came up, that’s when we moved.”
96Below their signatures, it stated that a deposit of $200 was provided on August 2, 2002 from Ms Desrochers. Below that, it indicated that Ms Blair provided a deposit of $1,125 “towards Aug.Sept. and (last month’s rent) apart #1,” and that Ms Desrochers provided a deposit of $925 for the same time period.
97During her testimony, she said that she travelled to Sudbury to see the apartment, during a long holiday weekend in the summer. She guessed it was around July 1st. She said that she and the other tenant, Nancy, saw the apartment together. She said it was not the long weekend in August, because that coincided with her birthday. She added it was not the long weekend in September, because she needed time to unpack.
98Ms Blair testified that Mr. Lacasse wanted to know if they were both students, and how long they would live there. She said that Mr. Lacasse did not speak to her mother, and that she has “no recollection of anyone’s parents guaranteeing the rent.”
99She testified that she did not believe Mr. Lacasse to be racist, since she said that she is “of a different ethnic background, I’m Filipino.”
100During her evidence, she said that she was unsure of the timing between herself and Ms Flamand, vis-à-vis who applied for the apartment.
101Ms Blair said that she had no opinion of Mr. Lacasse as a landlord, other than to say that he did the things he said he would do, such as maintenance and snow removal, and so from that perspective, he “fulfilled his bargain.”
102She said that Ms Desrochers left in November, and that Ms Blair’s fiancé moved in with her and her son. Both she and her fiancé were university students, and they did not have to arrange for daycare for her son, since they took turns with him. She said that Mr. Lacasse “was fine with Scott coming to live with me and taking Nancy’s place.” Mr. Lacasse did not ask her if a babysitter or nanny would be living with her in the apartment.
"Hopefully I'll Get Paid" Incident
103When asked point blank by Commission counsel if she was being paid to testify at this proceeding, Ms Blair replied that she had told her fiancé, “I guess I’m going to go, and hopefully, I’ll get paid.”
104Mr. Lacasse did not address the issue of whether or not he had paid Ms Blair to testify at the time of the hearing on the merits, but he did address it in his final written submissions, at some length. This is addressed below.
DGN INVESTMENTS' WRITTEN SUBMISSIONS
Mr. Lacasse is the Agent for DGN Investments
105Mr. Lacasse filed his closing submissions, stating that he was agent on behalf of DGN Investments. The Tribunal has not received any separate correspondence on behalf of Mr. Lacasse and Mr. Guenette in this regard. However, Mr. Lacasse’s testimony was clear that DGN Investments is a “50/50 partnership” of Mr. Lacasse and Mr. Guenette. He added that they own the “building in question as 50/50 partners,” and they are its “co-owners on title,” and not by way of a partnership agreement. Moreover, the tenancy agreement executed by Ms Blair and Ms Desrochers establishes that DGN Investments was the landlord for the apartment unit in question. Thus, any possible distinction between the Respondents was not legally meaningful under these facts in any event. The Tribunal has summarized the relevant parts of this submission, as set out below.
The Date of the Key Conversation
106During his testimony, Mr. Lacasse insisted that he met with Ms Flamand on July 24th, 2002. In his final submissions, Mr. Lacasse provided that he had a long conversation with Ms Flamand, on the evening of July 24, 2002, that lasted “at least 20-30 minutes,” rather than “the few hurried minutes of racist and discriminatory remarks Ms. Flamand claims went on, the evening of June 24th, (no year given).”
107In his final submissions, Mr. Flamand stated that, “the ad for the apartment appeared in the Bargain Hunter the week of July 10th to July 16th, 2002 (Appendix F). My apartment was not for rent in June 2002. Ms Flamand’s and Ms Symes’ letters were written before Ms Flamand met me for an interview on Wednesday, July 24th, 2002. All this makes no logical sense. The discrepancies in the dates destroy the validity of the letters of complaints and render these inadmissible in this case. This is yet another example of exploitation and fraud by Ms Flamand.” [Emphasis his]
Their Discussion About Her Deposit:
108In his written submissions, Mr. Lacasse insisted that Ms Flamand was too eager to cement the agreement, that he had to keep his word to the other prospective tenants, who ultimately did rent the unit, and to whom he refers in his testimony and in his written submissions as the “girls.” He stated as follows:
Because Ms. Flamand was really eager, even pushy, from the start, about giving me a deposit right then and there for the apartment, one of the first things I discussed with her was my commitment to 2 female students in South Porcupine that I had been communicating with over the phone for the last few weeks. I said I was waiting to receive their deposit by mail but was still interviewing prospective tenants in case this didn’t materialize. To this, she replied:
‘Well, I have a deposit. Why don’t you take mine?’
I replied that I couldn’t just do that now because I had to honor [sic] my promise to those girls, until further notice. [Emphasis his]
Notice to Her Landlord
109Mr. Lacasse insisted that he asked Ms Flamand whether or not she had given her two months notice to her landlord, and that she replied in the negative. Mr. Lacasse stated that he advised her that she had to do so, it was the law. He insisted that she said that her landlord had failed to properly maintain the premises and “didn’t deserve a notice.”
110Mr. Lacasse maintained in his final submissions that he was “finally able” to contact Ms Flamand’s purported prior landlord, provided his name and telephone number, and proceeded to state that Ms Flamand had failed to give him proper notice. In his final submissions, Mr. Lacasse stated:
He was Ms. Flamand’s landlord when she was renting at 26 Concession St., in July, 2002. He confirms that indeed, Ms. Flamand had not given him her notice when she tried to rent my apartment.
111Mr. Lacasse invited the Tribunal to telephone this purported prior landlord to confirm same. However, the Tribunal noted that Mr. Lacasse previously referred to his own conversation with her other purported subsequent landlord when she lived on Bryce St. from September, 2002 until April, 2003 in paragraph 3 of his Response, dated November 10, 2004. In the Response, he also attempted to give evidence on behalf of that other purported landlord. Since he knew how to reach two of her other purported landlords, and one of them by his own admission prior to the commencement of the hearing on January 24, 2005, the Tribunal is unwilling to give any credence to what he believed would have been their testimony since he did not call them as witnesses, nor did he offer the Tribunal any cogent reason for their absence.
Number of Occupants of Apartment
112Mr. Lacasse stated that he and Ms Flamand had a lengthy conversation, and that they discussed her plans to go to Cambrian College. Mr. Lacasse said in his final submission that the issue of childcare came up which led to his comment about the number of occupants in the apartment, as follows:
She then said that she would have to get a babysitter or nanny while she went to College. To this, I replied that if I rented the apartment to her and her son, I didn’t want to turn around and find out later that more people were living with her…
Ms Flamand has reconstructed the initial meeting and greeting. She has also transposed certain points that came up much later in the conversation, and changed them to suit her purpose. The initial meeting/greeting was, as I have already fully described in my pleadings polite, respectful and devoid of any racism. The question of more people living with her came up when we were discussing College and a nanny – not as I greeted her. The word “Indian” was never used, nor was the expression “fifteen other Indians come in behind”. I simply made the point that I did not want to see other people move in after a lease was signed for only herself and her son. [Emphasis his]
He Questions Her Reliability
113Mr. Lacasse provided in his final submission the reason why he asked her for references, as follows:
She then again tried to offer me a deposit from a money belt she had around her waist. I again reminded her of my previous commitment but told her that if it didn’t work out and I was to rent her the apartment, that I would need references. I must say that I don’t usually ask for references because all too often they don’t prove to be too reliable, but at this point, and, in this case, because she hadn’t given her notice, I felt I should.
Finally, I told Ms Flamand to give me a few days to find out if the girls were still interested in my apartment and, in the meantime, to provide me with references. She looked disappointed, but I had no choice. That was the only way I could deal with this situation.
Questions About Any Payment to Ms Blair
114In his final submissions, Mr. Lacasse took issue with Commission counsel’s question to Ms Blair, in which he inquired whether or not she had been paid to testify before the Tribunal. He believed that this question was “unnecessary and unprofessional” and that it demeaned him. However, at no time has Mr. Lacasse denied that he paid Ms Blair to testify before this Tribunal.
115Mr. Lacasse’s submissions in this regard relied upon his interpretation of witness fees. He referred to the following in his written submissions:
On p.2 of the Ontario Rental Housing Tribunal, it is stated that, “A witness is entitled to witness fees for attending the hearing.” And “The fees are the same as those paid in the Superior Court of Justice.”
** I have to assume that if these particulars apply to the Rental Housing Tribunal and the Superior Court of Justice, they must also apply to a Human Rights Tribunal.
** I see no reason, therefore, to have questioned my witness in this way and embarrassed her as well as me.
FINDINGS OF FACT AND LAW
116The Tribunal has carefully considered the viva voce evidence of all witnesses, and the documentary evidence that has been submitted. Based on this information, the Tribunal is satisfied that the Commission and the Complainant have established a prima facie case of discrimination with respect to accommodation on the ground of ancestry, as claimed, based on the reliable testimony of Ms Flamand and Ms Symes. Based on the self-incriminating testimony of Mr. Lacasse, the Tribunal is satisfied that Ms Flamand was also subjected to discrimination with respect to accommodation on the ground of family status.
Summary of Findings
117The following is a summary of the Tribunal’s findings for the Complainant.
118With respect to Ms Flamand:
(1) Her right to equal treatment with respect to occupancy of accommodation without discrimination based on ancestry was infringed by Mr. Lacasse, contrary to ss. 2(1) of the Code;
(2) Her right to equal treatment with respect to occupancy of accommodation without discrimination based on family status was infringed by Mr. Lacasse, contrary to ss. 2(1) of the Code; and
(3) The Respondents are jointly and severally liable for the acts of Mr. Lacasse, since he is a partner of DGN Investments and the Partnership Respondent was at all material times the landlord and owner of the apartment in question.
119Below the Tribunal delineates the reasons for these findings of fact and law.
The Credibility of the Parties and Witnesses
120The Tribunal has carefully considered the credibility of the parties themselves as well as the credibility of their respective witnesses.
121The Tribunal has weighed the test set in Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 at 357, against the evidence it has heard, as follows:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
122The Tribunal has considered the oral evidence provided by the Complainant, and is satisfied that she has been straightforward and consistent throughout this matter. Her handwritten notes, made contemporaneously to her initial discovery of the newspaper advertisement for the apartment, are dated, “Friday June 21st 2002,” correspond precisely to the date she testified that she telephoned about that apartment, in paragraph 1(a) of her Amended Complaint. Her oral testimony before the Tribunal concerning the dates of key events is also in accordance with her documentary evidence, and with the oral testimony of her corroborating witness, Ms Symes. The “Bargain Hunter” newspaper from which she found the apartment is dated for the “Week of July 10 TO June [sic] July 16, 2002.”
123The Respondents attempted to persuade the Tribunal that this was exclusively a July, 2002 publication, and that the key events in dispute took place in July, 2002, rather than in June, 2002. In their final submissions, they stated the newspaper’s date as being in, “the week of July 10th to July 16th, 2002, “as set out in paragraph 107, when in actual fact, the newspaper contained the words, “Week of July 10 TO June [sic] July 16, 2002.” There was clearly a typographical error in this title, concerning the months involved. However, on the same page of this publication, there were two other advertisements for other apartments that stated they were available on “June 1st” and other advertisements for apartments available on “July 1st.” Thus, the Tribunal finds that the publication included rental accommodations for the months of June onward. Moreover, Ms Symes’ signed statement was dated June 28, 2002, whereas Ms Blair’s letter to Mr. Lacasse confirming that she and Ms Desrochers wanted the apartment was dated July 29, 2002. Thus, the Tribunal is satisfied that Ms Flamand was both truthful and factually correct when she said that she approached Mr. Lacasse and his tenant, Susan, during the period of June 21-24, 2002.
124The issue of the key dates in question is not trivial to the Tribunal. While initially the Tribunal thought Mr. Lacasse was perhaps a bit absent-minded concerning the key dates, particularly given his comments that his memory can be rather poor, it had been a few years since this happened, he has many other tenants and that he is busy with his business interests, there is more at stake here than mere distraction and lack of attention to detail.
125The Tribunal has formed the opinion that Mr. Lacasse was deliberately trying to persuade the Tribunal that the key meeting occurred on “Wednesday, July 24, 2002,” in order to create a scenario where the ultimate two tenants, Ms Blair and Ms Desrochers, are in direct competition with Ms Flamand for this apartment during the month of July, and that they simply won out. This was a falsehood.
126The Tribunal has accepted the evidence of Ms Flamand as set out in paragraphs 22 to 24 that when she spoke to Susan, the existing tenant, Mr. Lacasse was prepared to let Susan out of her lease early if another tenant would take her place. It was clear from the Residential Tenancy Agreement that Ms Desrochers provided the Respondents with a $200 deposit on August 2, 2002, and that the Agreement was effective on August 30, 2002. The dates on the face of this agreement combined with the dates of various other apartments available in June and July on the same page of the “Bargain Hunter” as the apartment in question speaks to this gap in time during July and August. The Tribunal finds that Ms Blair and Ms Desrochers were not competing with Ms Flamand for the apartment, because Mr. Lacasse had already rejected Ms Flamand when they came along later.
127Mr. Lacasse also tried to persuade the Tribunal that he had made prior promises to Ms Blair and Ms Desrochers that would honourably prevail over Ms Flamand’s insistence that he take her deposit, when he submited that, “I again reminded her of my previous commitment but told her if it didn’t work out…” However, during his testimony about whether or not Ms Blair and Ms Desrochers had seen the apartment before they rented it, he contradicted himself, as set out in paragraphs 68 and 80.
128In addition to his lack of credibility on the issue of key dates and his conflicting testimony about the other tenants, Mr. Lacasse has added to his own troubles by insisting in his Response filed prior to the commencement of the hearing that the Tribunal contact Ms Flamand’s purported prior landlord, who would confirm that she had not provided him with proper notice of her intention to terminate her lease. The Tribunal noted that Mr. Lacasse had previously referred to his own conversation with this purported prior landlord in paragraph 3 of his Response, dated November 10, 2004, where he attempted to give evidence on his behalf. In his final submission filed after the end of the oral hearing on the merits, he said that he had been “finally able” to contact her purported subsequent landlord, and invited the Tribunal to telephone him, even though the time for calling witnesses had past. Again, in his final written submissions, Mr. Lacasse attempted to give evidence on behalf of her purported subsequent landlord after the end of the hearing on the merits. At the conclusion of the hearing, the Tribunal made it clear to all parties that the purpose of filing closing submissions was to summarize their cases, and not to re-open them.
129Since Mr. Lacasse clearly knew how to reach her purported prior landlord months before the commencement of the hearing on January 24, 2005, and chose not to call him as a witness, the Tribunal is drawing a negative inference from the combined facts that he was not called as a witness, yet by his own admission contained in the Response, he knows how to reach him and has his telephone number. While the Tribunal appreciates Mr. Lacasse’s repeated admonitions that he is not a lawyer and finds some of these matters technical, these are not legalistic distinctions, but matters that go to the heart of his credibility. The Tribunal relies on Vieczorek v. Piersma (1987) 1987 CanLII 4403 (ON CA), 58 O.R. (2d) 583 at 587, where the Ontario Court of Appeal held:
It is perfectly appropriate for a jury to infer, although they are not obliged to do so, that the failure to call material evidence which was particularly and uniquely available to the Vieczoreks was an indication that such evidence would not have been favourable to them. It is a common sense conclusion that may be reached by any trier of fact. There are no authorities which cast any doubt upon the proposition.
130The parties’ respective choices of witnesses also reflected more than was intended.
131Ms Symes was a clear, credible, independent eye-witness, who has a good recollection of key events, and had no business interests with Ms Flamand. Rather, she was the mother of Ms Flamand’s former boyfriend, and they have not seen each other for quite some time. Her testimony clearly corroborated Ms Flamand’s evidence that Mr. Lacasse not only commented that Ms Flamand was Native, but he stated that, “Once you rent to a couple of Natives, fifteen Indians come behind.” She recalled Mr. Lacasse’s refusal to accept Ms Flamand’s deposit, and his request that she provide him with references.
132In contrast, Ms Blair was not a credible witness. Her answers were vague, she had no particular recall of key dates, she had never seen Ms Flamand and could not shed any light on why she and her former roommate received the apartment instead of Ms Flamand.
133Futhermore, in the Respondents’ final submissions, they contend that Commission counsel improperly cross-examined Ms Blair as to whether or not she had been paid to testify before this Tribunal. It was submitted that this was “unnecessary and unprofessional,” and rather than dispute the suggestion that she was paid to testify, they analogize it to “witness fees.”
134Generally, asking a witness whether or not he or she has been paid to testify during cross-examination is both a proper and allowable question used to determine if a witness is biased or has an interest in the outcome of the litigation. It may be done to test the witness’ credibility. See: R. v. Chambers 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at para.30.
135The Tribunal finds that it was reasonable for Commission counsel to pursue this line of questioning under the circumstances, and that such questions were properly put to this witness under cross-examination.
136While the Tribunal certainly has concerns about both Ms Blair’s and Mr. Lacasse’s credibility, the Tribunal nevertheless accepts that she and her former roommate were the ultimate tenants of the property. The Tribunal finds that Ms Blair wrote to Mr. Lacasse on July 29, 2002 to introduce herself, that her roommate gave Mr. Lacasse a deposit of $200 on August 2, 2002 to secure it, and that Ms Blair and Ms Desrochers signed the Agreement on August 30, 2002, the date that appeared on its face.
137In terms of Mr. Lacasse’s own testimony, the Tribunal finds that when he realized Ms Flamand was a Native single mother, and not “French-Canadian” and “white” as he put it himself, he became concerned that she would need a childcare provider to live with her. He testified that he said to her, “I don’t want to find out later that there are more than you and your son living there.” However, the Tribunal does not believe that those were his exact words, and given his credibility problems, the Tribunal prefers the testimony of Ms Flamand and Ms Symes instead. The Tribunal finds that after commenting, “I didn’t know you were Native,” he did in fact reject her deposit money by saying, “Once you rent to a couple of Natives, fifteen Indians come behind.”
Intersectional Discrimination Based on Ancestry and Family Status
138The Tribunal refers to its earlier decision in Baylis-Flannery v. DeWilde (No.2) 2003 HRTO 28, at para. 143, where it held:
- An intersectional analysis of discrimination is a fact-driven exercise that assesses the disparate relevancy and impact of the possibility of compound discrimination, as per the analysis of the British Columbia Human Rights Tribunal in Comeau v. Cote, [2003] B.C.H.R.T.D. No. 32 (QL) [2003 BCHRT 32, 46 C.H.R.R. D/469], and of this Tribunal in Morrison, supra.
139On the evidence, it is clear to the Tribunal that Mr. Lacasse based his decision not to rent the apartment to Ms Flamand on the stereotypes he attributes to Native People, on his surprise in finding out that she was not a “French-Canadian white woman,” combined with his stereotypical view of single mothers, without partners or friends with whom to share childcare responsibilities. Hence, he refused to return her telephone call when she tried to provide him with references, and his comment when she did track him down on the telephone that he was looking for a married couple to rent the apartment, because he had had problems in the past with other single parent tenants and the Children’s Aid Society. By his own admission, he was concerned enough to ask her, when he met her and her son and realized that she was a Native single mother, if she would find it necessary to have other individuals occupy her apartment with them.
140The reliance on a single axis analysis where multiple grounds of discrimination are found tends to minimize the impact of the other ground of discrimination. Rather, the Tribunal refers to para.148 of Baylis-Flannery, supra, where it relied upon the analysis of Madam Justice L’Heureux-Dubé for the minority in Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513, who found that, “Courts must treat these considerations as a matrix rather than as a single equation…” [emphasis added]. The “matrix” approach to analyzing the facts establishing racial discrimination was also adopted by the Divisional Court in Smith v. Mardana Ltd. (2005), CHHR Doc. 05-094 (Ont. Div. Ct.), where the Divisional Court in examining a workplace poisoned by racism, reviewed what it described as “The Factual Matrix.”
PARTNERSHIP LIABILITY
141The Tribunal finds, based on Mr. Lacasse’s testimony, the Tribunal’s own review of the tenancy agreement executed by Ms Blair and Ms Desrochers for the unit, and on the final written submissions filed by Mr. Lacasse as agent for DGN Investments, that Mr. Lacasse and Mr. Guenette are “50/50 partners” of DGN Investments, and that DGN Investments is the ultimate landlord and owner of the apartment.
142Mr. Guenette chose to remain virtually silent throughout this hearing process, although he was on notice of these proceedings, appeared in person before the Tribunal at the hearing, and was repeatedly afforded an opportunity to comment, file pleadings, and testify. The Tribunal finds that Mr. Guenette is a partner of DGN Investments and has full knowledge of these proceedings against himself as a named Personal Respondent and against the Partnership Respondent.
143According to s.10(1) of the Partnership Act, R.S.O. 1990, c. P. 5, every partner in a firm is jointly liable with the other partners for all debts and obligations of the firm incurred while the person is a partner, with the exception of a limited liability partnership. Since both Mr. Lacasse and Mr. Guenette are the owners of this partnership, it is not necessary for the Tribunal to consider s.45(1) of the Code to determine liability. The Personal Respondents and the Partnership Respondent are all one in the same, as per Reed v. Cattolica Investments Ltd. (1996), 1996 CanLII 20104 (ON HRT), 30 C.H.R.R. D/331 (Ont.Bd.Inq.), and Colvin v. Gillies (No.2) 2004 HRTO 3, at para. 239.
REMEDY
144In accordance with s.41 of the Code, the Tribunal hereby sets out its remedial order.
145To compensate Ms Flamand for her losses arising out of the intersectional infringement of her rights, the Tribunal makes the following order for general damages including mental anguish, and for special damages.
General Damages
146Ms Flamand has had her right to equal treatment with respect to accommodation based on ancestry violated, contrary to s.2(1) of the Code. Discriminatory treatment of tenants combined with derogatory comments about their ancestry are not acceptable. As noted in Ontario (Human Rights Commission) v. Elieff (1996), 1996 CanLII 20062 (ON CTGDDC), 37 C.H.R.R. D/248 (Ont. Ct.(Gen. Div.)) at para. 13:
…the derogatory remarks about one racial group resulted themselves in unequal treatment for members of that group. This can be the case where a “poisoned environment” has been created, even if all persons, in this case, all tenants, are otherwise treated in the same way. The racial slurs against one group constitute the differential treatment.
147His derogatory remarks about her ancestry combined with his refusal to take her deposit while he conducted a reference check, and then his later insulting refusal to take her references when she called him back in order to provide them, were wilful and reckless and caused her mental anguish. Moreover, it was a waste of her time that could have been put toward finding other accommodation. The Tribunal follows Richards v. Waisglass (1994), 1994 CanLII 18427 (ON HRT), 24 C.H.R.R. D/51, at para. 71, where the Board of Inquiry held:
In fact, I believe that there was no process whatever in place, and that Mr. Waisglass asked for references or failed to based on his “gut feeling.” In this case, I believe he simply concluded that it was unlikely that a black woman would have the financial wherewithal to satisfy him concerning her long-term ability to rent the apartment.
148Similarly, Mr. Lacasse’s stereotypical views about single mothers and their children as undesirable tenants who receive visits from the Children’s Aid Society bolstered by his stated preference for a married couple as tenants are also discriminatory on the basis of family status.
149The Tribunal has considered these two separate infringements, their intersectionality, and her loss of dignity, and weighed those factors against the short duration of these infringements and their overall impact to her.
150The Tribunal has reviewed and reflected upon a number of earlier decisions of this Tribunal and the Board of Inquiry before it, with respect to similar types of discrimination in accommodation. See: Elieff, supra; Reed, supra; Richards, supra; Fuller v. Daoud (2001), 2001 CanLII 26227 (ON HRT), 40 C.H.R.R. D/306 (Ont. Bd. Inq.); St. Hill v. VRM Investments Ltd., 2004 HRTO 1; and Cunanan v. Boolean Developments Ltd., 2003 HRTO 17.
151The Tribunal finds that Ms Flamand’s general damages, including mental anguish, that flow from the infringements of the Code with respect to accommodation based on her ancestry and family status are $9,000 against the Respondents.
Special Damages
152The Tribunal is permitted to award special damages in order to compensate Ms Flamand for her out-of-pocket expenses that have a nexus to the discrimination she suffered. Ms Flamand asked for the difference between the rent on Barrie St. and on Bryce St., which is $50. She also sought special damages to compensate her for the payments she made to friends to compensate them for their time and gas money when they drove her around Sudbury searching for other accommodation. Unfortunately, Ms Flamand does not have any receipts for any of her out-of-pocket expenses, for which Commission counsel requested $1,500 in his Statement of Facts and Issues. However, in his closing submissions, Commission counsel suggested that given her lack of receipts, $150 was a reasonable sum. The Tribunal finds that Ms Flamand’s special damages are $100.
Public Interest
153Counsel for the Commission requested public interest remedies. The Tribunal refers to its findings and has determined that public interest remedies are necessary for the protection of current and future tenants.
154The Tribunal finds that within three months of this decision, the Respondents must undertake human rights educational and sensitivity training at their own expense, to be conducted by a trainer approved by the Commission.
155The Tribunal finds that within thirty days of this decision, the Respondents must post notices provided by the Commission, within the lobbies of all of its apartment buildings indicating that it observes and upholds the Code.
Pre-Judgment and Post-Judgment Interest
156In Statement of Facts and Issues, the Commission asked for pre-judgment interest on any awards made. In his closing submissions, counsel for the Commission requested pre- and post-judgment interest on any awards made.
157The Tribunal grants pre-judgment interest on all the awards, commencing from the date of the filing of the Amended Complaint. The Tribunal also orders post-judgment interest on all damages, commencing within thirty days from the date of this Decision.
ORDER
158The Respondents, Marcel Lacasse, Normand Guenette and DGN Investments, are jointly and severally liable to pay Rosemary Flamand the following amounts within thirty days of this Order:
(1) $9,000 as compensation for her humiliation and loss of dignity resulting from the infringement of her rights to be free from discrimination in accommodation, based on her ancestry and family status, and as compensation for her mental anguish, caused by these infringements of her rights under the Code;
(2) $100 as compensation for her special damages; and
(3) pre-judgment interest on the awards, commencing from the date of the filing of the Amended Complaint, and post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act commencing thirty days from the date of this Order.
159Further, the Respondents are ordered and directed to take the following actions to achieve compliance with the Code in respect of their future conduct and practices within three months of this Order:
(1) undergo human rights educational and sensitivity training at their own expense to be conducted by a trainer approved by the Commission; and
(2) post notices provided by the Commission, within the lobby of each of its apartments indicating that it observes and upholds the Code.
160The Tribunal shall remain seized of this matter for a period of twelve months from the date of this Order, in order to deal with any implementation issues that may arise.
Dated at Toronto, this 8th day of April, 2005.
“Mary Ross Hendriks”
Mary Ross Hendriks
(Acting) Chair