Kertesz v. Bellair Property Management, 2007 HRTO 38

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Viviane Kertesz

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Bellair Property Management

and Ronnie G. Campagna

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: October 31, 2007

Citation: 2007 HRTO 38

Indexed as: Kertesz v. Bellair Property Management

Human Rights Tribunal of Ontario

400 University Avenue, 7^th^ 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@ontario.ca

Website www.hrto.ca

APPEARANCES

Viviane Kertesz, Complainant ) Judith McCormack, Counsel ) Megan Vuksic, Student-at-law

Ontario Human Rights Commission ) Bay Ryley, Counsel

Bellair Property Management, ) No one appeared Ron Carr, Respondent )

INTRODUCTION

1On October 15, 2002, Ms. Viviane Kertesz filed a Complaint with the Ontario Human Rights Commission (the “Commission”) alleging that she was sexually harassed by Ron Carr while she was a tenant at Bay Manor apartments, contrary to sections 2(1) and 7(1) of the Ontario Human Rights Code R.S.O. 1990, c.H.19 (the “Code”). She also alleges that Mr. Carr reprised against her when she took steps to enforce her rights under the Code, contrary to section 8. Bellair Property Management, the name under which Mr. Carr operated his management business, is also named as a party.

2On February 27, 2007, the Commission referred the Complaint to the Human Rights Tribunal of Ontario (the “Tribunal”) to be heard and decided. I amended the Complaint to reflect the correct legal name of the Respondent, Ronnie G. Campagna. However as Mr. Campagna was known as Ron Carr, I shall refer to him as Ron Carr.

3Mr. Carr did not attend the hearing, although he was given notice of the hearing and provided numerous statements, responses and documents to the Tribunal. I was satisfied that Mr. Carr had notice of the proceedings which were scheduled to begin on Thursday September 13, 2007 at 10.00 a.m. After waiting 30 minutes, I commenced the proceedings in his absence.

4The hearing took place on September 13 and 14, 2007. I heard the evidence of Viviane Kertesz and Ryann Miller. I also admitted into evidence all the witness statements obtained by the Human Rights Commission investigator and the written responses of Mr. Carr to the various pleadings of the Commission and the Complainant. However, I have decided to give no weight to the witness statements as the individuals did not testify. I found Mr. Carr’s statements and responses to be so contradictory that they should also be given no weight. I declined to hear the oral evidence of an expert in sexual harassment as I found that the proposed evidence would not be helpful in this case.

The Evidence

5Viviane Kertesz was 25 years old when she moved into her first apartment at Bay Manor in July 2000. She was interviewed by Ron Carr, who acted as the property manager or superintendent of the apartment building. At the interview, Mr. Carr asked whether she was single. Ms. Kertesz thought this was an odd question and wondered whether it might be related to the number of people who would be living in the bachelor apartment, since water usage was included in the rent.

6Ms. Kertesz’ apartment was located in the basement. For most of the period of her tenancy, Mr. Carr lived in the apartment beside her, so that Ms. Kertesz had to pass Mr. Carr’s apartment to enter and exit her apartment. In early 2002, he moved to the third floor. Mr. Carr had an “open door” policy, which meant he literally kept his door open or ajar most of the time. Thus, until 2002, she was obliged to greet him when she entered or exited her apartment. He would often call out to her and attempt to engage her in conversation, sometimes wearing his bathrobe. On more than one occasion, Ms. Kertesz testified that she heard what she believed were the sounds of Mr. Carr having sex with his girlfriend, because the door was left open.

7Ms. Kertesz testified that she felt that Mr. Carr wanted a more friendly relationship than she felt comfortable with. She was always polite and courteous and responded to his greetings, but wanted to keep a more formal landlord-tenant type of relationship.

8Ms. Kertesz and other tenants would sometimes congregate outside the back door to smoke. In this way, Ms. Kertesz met another tenant, Amy Goegan. Ms. Goegan introduced her to Catherine Tibensky and Violet (whose legal name is Shima Shakoor). Ron Carr was also a smoker and would sometimes join her. Ms. Kertesz would sometimes butt out her cigarette early to avoid meeting him.

9From November 1, 2000 until April 30, 2001, Ms. Kertesz sublet the apartment to a friend, Ms. Ryann Miller. Mr. Carr agreed to the sublet. When discussing the potential sublet, Mr. Carr asked if the proposed tenant was single.

10Ms. Kertesz sublet the apartment to take up a six-month contract to teach conversational English in France. Before she departed, Mr. Carr repeatedly asked her to send him a postcard. She felt this was an inappropriate request. However, before she left France, she left a postcard addressed to Mr. Carr with her cousin with instructions not to mail it unless further advised. Upon returning to take up her apartment, Mr. Carr asked why she had not sent a postcard. He seemed annoyed. Ms. Kertesz then arranged for the postcard to be sent to keep her relationship with Mr. Carr on good terms.

11Upon her return from France, Ryann Miller advised that she found Mr. Carr creepy and that he had once asked her to have a “threesome” with him and his girlfriend.

12Ron Carr asked Ms. Kertesz to give him Ryann Miller’s phone number after she had left; upon consulting with Ms. Miller, who did not want this information shared with Mr. Carr, Ms. Kertesz tried to put him off. He persisted verbally several times. He sent her several written notes reiterating his request for Ms. Miller's number. This made Ms. Kertesz uncomfortable.

13Ryann Miller testified that Mr. Carr had asked her about her relationship status and whether she was happy in her relationship. She stated that Mr. Carr would often waylay her on her way to her apartment and try to engage her in conversation. He would follow her uninvited into her apartment. This happened on a repeated basis. She also confirmed that on one occasion, Mr. Carr raised the subject of a “threesome”, meaning a sexual event with himself and his girlfriend and Ms. Miller. She reported this to Ms. Kertesz. Ms. Miller also confirmed that she often heard the sound of people having sex coming from Mr. Carr’s apartment and that at least on one occasion, the door was open.

14Ms. Kertesz testified about three specific comments that Mr. Carr addressed to her which contained sexual innuendo. The first one occurred in May or June 2001. She was smoking outside with Amy Goegan and mentioned that her family considered her “geographically challenged” because she often got lost. Mr. Carr joined the conversation saying “Are you horizontally challenged too…would you know what to do if you got a man in your bed?” Ms. Kertesz felt uncomfortable. She felt this was a veiled offer to have sex with her.

15Ms. Goegan has since moved out of Toronto and was not interviewed by the Commission. She was not called as a witness, but I do not draw an adverse inference from this, as her whereabouts are not known.

16In July 2001, as Ms. Kertesz was coming home late at night she met Mr. Carr in the front of the building. She greeted him. He said “Viviane, I saw this sexy woman walking by and I looked and realized it was you…” No one witnessed this event. Ms. Kertesz testified that she felt that Mr. Carr was hitting on her to see if she would be receptive to some kind of sexual relationship.

17The next incident occurred in November 2001. Ms. Kertesz was wearing a black leather jacket with a V-neck. Mr. Carr said “you must be cold under there….” She understood Mr. Carr to be suggesting that she wasn’t wearing anything under the jacket and offering to warm her up. There was no witness to this incident.

18Ms. Kertesz had conversations with other female tenants, Amy Goegan, Catherine Tibensky and Shima Shakoor, about what she had experienced. While neither Amy Goegan nor Catherine Tibensky had experienced any unwelcome sexual comments, Ms. Kertesz testified that they were not surprised by the comments she outlined. Shima Shakoor told Ms. Kertesz of an incident between herself and Mr. Carr, which shall not be detailed here, as Ms. Shakoor did not testify. Suffice it to say that Ms. Kertesz understood that Mr. Carr had made a sexual overture to Ms. Shakoor.

19The next incident occurred on April 20, 2002. Ms. Kertesz, Ms. Goegan and Ms. Tibensky were in a convenience store near the apartment when they saw Mr. Carr leave the store. Ms. Kertesz thought it was strange that he had not acknowledged them in light of his usual friendly manner. After he departed, she inquired of the cashier as to whether the man who had left had bought anything.

20Mr. Carr subsequently confronted Ms. Kertesz outside the apartment saying: “If you’ve got something to say to me say it to my face”. When she tried to discuss the matter with him, he ranted at her, alleging that she had affected his reputation at the convenience store.

21That evening Mr. Carr left a three-page written letter for her and the other women reiterating that whatever they had said to the convenience store clerk had affected his reputation and threatening legal action. He referred to another tenant who appeared to have taken action against him in a landlord-tenant dispute. Mr. Kertesz understood the letter as a veiled threat against taking any legal action against him.

22On April 24, 2002, Mr. Carr left her another letter asking Ms. Kertesz to meet him. She did not do so.

23On April 25, 2002, he sent her another letter angrily denouncing her behaviour at the convenience store, but saying he considered the matter closed.

24On May 6, 2002, Shima Shakoor, the tenant whose apartment was directly above Ms. Kertesz’, told her that there was a leak in her apartment, leaking down to Ms. Kertesz’ apartment. Ms. Kertesz found the leak inside her closet. It had caused some damage to the wall. The next day she left a written notice for Mr. Carr advising him that the closet needed repair due to the leak and also asked for a repair of the bathroom ceiling. She asked him to inspect it.

25Mr. Carr apparently inspected the premises that day, as he left her a three-page letter alleging that the damage to the closet was caused by her failure to advise him of the leak earlier. He set a date (May 11, 2002) for entering her apartment to inspect the premises once the damaged area was dry. On the May 10, 2002, he sent her another letter deferring the inspection until Saturday June 1, 2002. He told her he wished to have no further dealing with her and referred her to the owner.

26Ms. Kertesz contacted the owner verbally and by written letter on May 14, 2002, expressing displeasure at the delay in making the repairs. The same day she received another letter from Mr. Carr advising that she was not to contact the owner any more and that he (Mr. Carr) would be inspecting her apartment on May 15, 2002at 11:00 a.m. to effect a temporary repair.

27The next day, Mr. Carr sent a letter further delaying the repairs, alleging that Ms. Kertesz had not emptied the closet as requested. He advised that he would enter the apartment on May 16, 2002, between 8:00 a.m. to 8:00 p.m.

28On May 16, 2002, Mr. Carr attempted to speak to Ms. Kertesz in the small, enclosed foyer to the apartment, about the convenience store incident. She wanted to leave the foyer but he blocked her. He appeared quite agitated and threatened to “kick her ass to the curb.” Ms. Kertesz did not know whether he meant it literally (that he would kick her) or figuratively (that he would evict her). At one point, she thought he raised his arm. Ms. Kertesz testified that she felt physically threatened and visited the police the next day. The police did not lay charges but advised her that they had spoken to Mr. Carr and she should not expect any further incidents.

29Ms. Kertesz did not return to her apartment alone after that date.

30Mr. Carr sent more letters advising of his intention to enter her apartment to effect repairs on May 17, May 21, and May 22, 2002, between 8:00 a.m. to 8:00 p.m.

31On May 20, 2002, Mr. Carr served Ms. Kertesz with a notice of termination of her lease effective June 30, 2006 because of the damage she had allegedly caused to the apartment. The notice sought repair costs of approximately $1800.

32By May 22, 2002, the repairs were completed. By this point Ms. Kertesz was no longer staying in the apartment. She contacted Downtown Legal Services (“DLS”), a legal clinic operated by the University of Toronto. The clinic sent a formal notice to Bay Manor apartments, advising that Ms. Kertesz was terminating her tenancy effective May 31, 2002 due to harassment by Mr. Carr.

Analysis

33I accept Ms. Kertesz’ factual evidence without hesitation. She gave her evidence in a straightforward manner. Her evidence was consistent with her prior statements and consistent with the evidence of Ms. Miller. I also accept Ms. Miller’s uncontradicted evidence in its entirety.

34Superintendents are in a position of power over tenants. They approve the lease and can affect the use and enjoyment of the tenant’s home life with respect to whether they approve subleases, how they interact with the tenant, how promptly they respond to requests, and by their power to issue eviction notices. This power dynamic colours the relationship between a superintendent and a tenant and must be carefully considered in assessing whether the superintendent’s conduct amounts to harassment under the Code.

35I find that Mr. Carr engaged in a course of vexatious comment or conduct that he ought reasonably to have known to be unwelcome to Ms. Kertesz. Mr. Carr’s inquiry as to whether Ms. Kertesz was single during the initial interview was inappropriate. While not necessarily vexatious conduct, in and of itself, when viewed in the context of the subsequent events, it forms part of the pattern of harassment. Mr. Carr‘s three comments with sexual innuendo were vexatious in the sense that they made Ms. Kertesz uncomfortable. While Ms. Kertesz did not expressly voice her displeasure at such comments, because she wanted to protect her housing situation, a superintendent ought reasonably to know that such unsolicited comments would be unwelcome to a young female tenant. Mr. Carr was approximately 45 years old at the time, while Ms. Kertesz was 25.

36I find that Mr. Carr’s repeated attempts to establish a relationship with Ms. Kertesz, including his pestering Ms. Kertesz for a postcard, were also unwelcome and vexatious conduct. Friendly overtures by a landlord or agent of the landlord do not necessarily amount to harassment. It is only in the context of Mr. Carr’s other actions that the “friendliness” crossed the line and became vexatious.

37I find that the sexual sounds overheard by Ms. Kertesz when Mr. Carr left his door open were vexatious to Ms. Kertesz, and that Mr. Carr ought reasonably to have known that such conduct would be offensive.

38I conclude that Mr. Carr’s actions from July 2000 until November 2001 amounted to sexual harassment by an agent of the landlord under section 7(1) of the Code. This is also a violation of section 2(1) as it amounts to discrimination in the occupancy of accommodation on the basis of sex.

39The last comment of a sexual nature made to Ms. Kertesz occurred in November 2001. I find that the incident of April 20, 2002 at the convenience store triggered another round of harassment by Mr. Carr, in the form of repeated letters and attempts to meet.

40A third round of harassment occurred after Ms. Kertesz reported the water damage on May 7, 2002. This was the most severe form of harassment, leading to Ms. Kertesz terminating her lease early.

41The Commission and Ms. Kertesz submitted that when Ms. Kertesz rebuffed Mr. Carr’s sexual advances and declined to be “friendly” he turned on her. They submit that Mr. Carr’s harassment, albeit not explicitly sexual after November 2001, was simply another way of exercising power over her.

42The Commission and Ms. Kertesz also drew my attention to the fact that Mr. Carr was involved in a dispute with Ms. Shakoor, another female tenant around this time. They submitted that Mr. Carr’s apparent belief that Ms. Kertesz and other female tenants were talking about him, and that Ms. Shakoor had raised the issue of sexual harassment with DLS, led to Mr. Carr’s strong reactions to the April 20, 2002 incident and to his behaviour over the repair issue. I had difficulty assessing this argument as Ms. Shakoor did not testify nor did anyone from DLS.

43I accept that a Respondent who engages in sexual harassment may, when rebuffed or threatened with exposure, change the form of the sexual harassment into a seemingly “neutral” form of harassment to disguise the real roots of his/her behaviour. Thus, it could be that Mr. Carr overreacted to the convenience store incident or the request for repairs as some form of reprisal against Ms. Kertesz for not accepting his sexual advances, or for not being friendly, or for talking to a tenant who was taking legal action for harassment. It could also be that Mr. Carr changed the manner in which he chose to exert his power over a young woman from making sexually charged comments to exerting his superintendent powers (via letter writing). However, I must decide this case on the evidence before me and reasonable inferences from that evidence, and not based on speculation.

44I accept Ms. Kertesz’ evidence that she sincerely believed that all Mr. Carr’s actions were part of the same pattern of harassment on the basis of sex. I have also drawn an adverse inference from Mr. Carr’s failure to testify. However, I am not prepared to draw the inference that Mr. Carr’s conduct after April 2002 amounted to a reprisal or a punishment for refusing his sexual advances.

45The evidence before me demonstrates that the last overtly sexual comment was made to Ms. Kertesz in November 2001. The period of five months before the relationship deteriorated is a factor against connecting Mr. Carr’s behaviour to Ms. Kertesz’ refusal of his advances. The relatively mild and sporadic nature of the comments also militates against drawing an inference that Mr. Carr would have reacted angrily to Ms. Kertesz’ not “playing along.” Ms. Kertesz did not indicate that the comments were unwelcome or otherwise treat Mr. Carr differently. Why would he turn against her?

46An alternate theory put forward by the Commission and Ms. Kertesz is that Mr. Carr believed that Ms. Kertesz might file a sexual harassment complaint against him, or support the complaint of another female tenant.

47The documentary evidence submitted by DLS indicates that in December 2001, Mr. Carr issued a notice to Ms. Shakoor that he would shortly be taking her to the Ontario Rental Housing Tribunal to have her evicted for allegedly refusing to provide a key for the lock she installed and for damaging the apartment. Ms. Shakoor apparently contacted DLS and alleged that Mr. Carr had harassed Ms. Shakoor and other unnamed female tenants. The absence of evidence from Ms. Shakoor or a DLS witness makes it difficult to evaluate this argument. Nonetheless, I accept that by February 2002, Mr. Carr was aware that Ms. Shakoor had raised the spectre of harassment in relation to a rental dispute. He was also aware that Ms. Kertesz was friendly with Ms. Shakoor around that time.

48However I am not satisfied that the evidence leads to the inference that Mr. Carr turned on Ms. Kertesz after the April 20, 2002 convenience store incident because he believed Ms. Kertesz was one of the unidentified female tenants referred to by Ms. Shakoor, or because he worried that Ms. Kertesz was supplying evidence to support Ms. Shakoor’s claim. For the reasons discussed above, given the relatively minor nature of his earlier comments and actions, and the fact that Ms. Kertesz had not given him any reason to suppose she was angry with him, there was little reason for Mr. Carr to assume that Ms. Kertesz would accuse him of harassment.

49Instead, I draw the inference that Mr. Carr abuses his position of authority in different ways, sometimes by sexually harassing female tenants, which is an offence under the Code, and sometimes by pestering and badgering and annoying tenants he does not like, which is not an offence under the Code. The Commission submitted that, by definition, when an older male superintendent exerts his landlord-like power over a younger female tenant, this amounts to a violation of the Code. I do not accept that argument.

50On Ms. Kertesz’s evidence, Mr. Carr’s harassment re-ignited after April 20, 2002 following the convenience store incident. Mr. Carr was quite incensed about this incident. I find that Mr. Carr’s relationship with Ms. Kertesz deteriorated directly after and because of the convenience store incident, which was unrelated to the previous sexual harassment, or the discussions between Ms. Kertesz and the other women about Mr. Carr’s behaviour.

51I find that Mr. Carr badgered Ms. Kertesz after April 20, 2002 because of the convenience store incident and carried on his bullying of Ms. Kertesz when she raised a repair issue. However, I do not accept that he was motivated, even in part, by the fact that she was not willing to accept his sexual advances or because he believed she might file a sexual harassment complaint, or because she might support Ms. Shakoor’s complaint.

52I find that Mr. Carr did not attempt to threaten or intimidate Ms. Kertesz against exercising her rights under the Code. I note that Ms. Kertesz did not mention or suggest any possibility of filing a sexual harassment complaint until several months after she left the apartment.

53Accordingly, I conclude that Mr. Carr’s actions from April 20, 2002 do not breach sections 2(1), 7(1) or 8 of the Code.

Conclusion

54I find that Ronnie G. Campagna (also known as Ron Carr) and Bellair Property Management are liable for the sexual harassment of Ms. Kertesz from July 2000 to November 2001, contrary to sections 2(1) and 7(1) of the Code.

55I find that Ms. Kertesz’s abrupt departure from the Bay Manor apartments was not related to the breach of her rights under the Code. Therefore, any financial losses incurred by her abrupt departure are not compensable.

56In terms of general damages, Ms. Kertesz was made uncomfortable by Mr. Carr’s unwanted comments of a sexual nature and his attempts to impose a friendly relationship on her. There were three specifically sexual comments, the sexual sounds when the door was left open, and a pattern of an attempt at friendship from July 2000 to November 2001 (excluding the six month sublet). Ms. Kertesz was not unduly upset by these actions, nor did she experience any mental anguish. This would suggest a relatively small general damage award.

57However, a superintendent is in a position of power over tenants. They can make the living situation of a tenant uncomfortable or unbearable. An abuse of this power can have a significant effect on a tenant’s enjoyment of her living space. When the superintendent is an older male inappropriately exerting power over a younger female in the form of sexual harassment, this undermines her expectation of peaceful occupation of her home. In all the circumstances, I find that a general damage award of $5000 (inclusive of any interest component) is appropriate.

58I find that Ms. Kertesz was understandably considerably more upset by the events that occurred following the April 20, 2002, incident at the convenience store. As I found above, those events do not amount to gender or sexual harassment, and therefore cannot be considered in the award of general damages.

Public Interest Remedies

59Mr. Carr currently provides maintenance services to another landlord. In order to ensure future compliance with the Code, Mr. Campagna (Mr. Carr) is ordered to attend a one-day training session on sexual harassment within six months of my decision.

ORDER

60Having found that Ronnie G. Campagna and Bellair Property Management violated Ms. Kertesz’s right to be free from sexual harassment in accommodation, contrary to sections 2(1) and 7(1), the Tribunal orders:

1. The Respondents, Ronnie G. Campagna and Bellair Management shall pay to the Complainant the sum of $5000, inclusive of interest, for which amount the Respondents are jointly and severally liable.

2. Ronnie G. Campagna shall attend a one-day training session on sexual harassment within six months of the date of this decision, such session to be approved by the Ontario Human Rights Commission.

I will remain seized of this matter for one year to deal with any issues arising out of this decision.