Bekele v. Cierpich, 2008 HRTO 7

Human Rights Tribunal of Ontario

B E T W E E N:

Kifle Bekele Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Joanna Cierpich Respondent

DECISION

Adjudicator: David A. Wright

Date: January 24, 2008

Citation: 2008 HRTO 7

Indexed as: Bekele v. Cierpich

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@ontario.ca Website www.hrto.ca

APPEARANCES

Kifle Bekele, Complainant ) On his own behalf

Ontario Human Rights Commission ) Brian Smith, Counsel

Joanna Cierpich, Respondent ) Krzysztof Cierpich, ) Representative

INTRODUCTION

1On the evening of July 16, 2004, Mr. Kifle Bekele signed an Agreement of Purchase and Sale relating to a unit in a west-end Toronto apartment building. The sale had to be approved by the board of directors of the corporation that owns the building. While such approvals generally take several business days, Mr. Bekele did not receive approval until September 8, 2004.

2Mr. Bekele and the Ontario Human Rights Commission (the “Commission”) allege that Joanna Cierpich, the acting president of the corporation, discriminated against Mr. Bekele, who identifies as Black and is originally from Ethiopia. They submit that during the approval process she discriminated against him on the grounds of colour, ethnic origin, and race, violating section 2(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). Mr. Bekele testified that at the time he made his purchase, there were no Black people living in the building.

3Ms. Cierpich submits that the delay was the result of an unfortunate series of events, including an ongoing bitter dispute between two factions represented on the board of directors, the failure of the building’s property manager to arrange for the approval as instructed, and real estate agents and lawyers who did not pay sufficient attention to the matter. She asserts that she was not responsible for the delay, much of which occurred while she was on vacation and had left matters in others’ hands, and that Mr. Bekele’s race was not a factor.

BACKGROUND

4Mr. Bekele filed his complaint with the Commission on December 15, 2004. He named four respondents: Ms. Cierpich, the ownership corporation (the “corporation”), the individual who worked as the building’s property manager (the “property manager”), and another member of the board of directors (“Mr. B.”). The latter three respondents settled with Mr. Bekele during the Commission investigation process. The Commission referred the complaint as against Ms. Cierpich to the Tribunal by letter received May 2, 2007.

5The settlements provided that the respondents did not admit any liability nor did the complainant retract his allegations. The parties accepted that in accordance with the jurisprudence of the Tribunal and the decision of the Divisional Court in York Advertising Ltd v. Ontario (Human Rights Commission), [2005] O.J. No. 1808, it would be inappropriate to identify the respondents who settled in this decision, and I agree. I have also not identified certain other members of the board of directors who did not testify, as a result of allegations about the nature of their conduct.

6The hearing took place on December 4, 5, 6, 7, 10 and 11, 2007, during which eight witnesses testified. The Commission called the following witnesses:

• Mr. Bekele
• Pat Duthie, Mr. Bekele’s real estate agent
• David Cobain, the seller of the property
• Carole Decelles, a member of the board when Mr. Bekele made his purchase
• Rosemary Orser, who was not a member of the board when Mr. Bekele made his purchase, but who had previously been a board member
• Mr. Bekele’s friend Chris Fuhrmann, who was involved in the purchase process

7The respondent called the following witnesses:

• Ms. Cierpich
• The member of the board who was named as a respondent and settled (Mr. B.)

8In this decision, I have used the term "Black" to refer to the complainant and the community affected by the alleged discrimination in this case. Mr. Bekele self-identified using this term. Canadian law recognizes that anti-Black racism is a particular and serious form of discrimination in our society. As the Ontario Court of Appeal has held, “[r]acism, and in particular anti-black racism, is a part of our community’s psyche”: R. v. Parks, 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 at p. 369 (Ont. C.A.). See also R. v. Spence, 2005 SCC 71 at paras. 30-47.

9At various points, I also use the term "Polish-speaking" to refer to the respondent, her allies on the board, and a group of residents in the building. Ms. Cierpich used this term to self-identify and the witnesses used it in giving their evidence. In using this terminology, I am not suggesting in any way that the fact that the respondent identified as Polish-speaking played any role in the allegations, nor do my findings reflect in any way upon the other Polish-speaking residents of this building or the Polish-Canadian community in general.

EVIDENCE: ALLEGED VIOLATION OF THE CODE

A. The Corporation and the Board of Directors

10The building where Mr. Bekele made the purchase is owned by a corporation incorporated under the Business Corporations Act, R.S.O. 1990, c. B.16. This ownership structure is known as a co-ownership or co-operative building – it is different from both a condominium and a non-profit cooperative. Owners purchase shares of the capital of the corporation, together with rights under an occupancy agreement and a trust agreement allowing them to occupy and use a particular unit in the building. The Articles of Incorporation state that shares may not be transferred without a directors’ resolution, an instrument signed in writing by the majority of directors, a shareholders’ resolution, or an instrument in writing signed by the majority of shareholders. In practice, the directors exercise this power.

11The by-laws provide for a maximum of seven directors. The board selects a president, secretary, and treasurer from among the directors. The by-laws also allow for other possible positions that were not filled during the events at issue here. The responsibilities of the president are set out in the by-laws as follows:

The board may from time to time appoint a president. If appointed, the president shall be the chief operating officer if no managing director has been appointed, and, subject to the authority of the board, shall have general supervision of the business of the Corporation; and he shall have such other powers and duties as the board may specify. During the absence or disability of the managing director, or if no managing director has been appointed, the president shall also have the powers and duties of that office.

The responsibilities of the managing director are similar. He or she is the “chief executive officer” and, subject to the authority of the board, has “general supervision of the business and affairs of the Corporation”. It is common ground that there was no managing director during the events relevant to this complaint.

12It was apparent from the testimony of all witnesses that there had been considerable acrimony and dispute among the directors and in the building for some time prior to the events at issue here. As Mr. Cobain described it, there was a situation of “extreme unpleasantness” between one group, consisting primarily of many of the Polish-speaking residents, and another group that included Ms. Orser and Ms. Decelles. There were various subjects of disagreement, including the choice of property management company, the question of repairs to the parking garage, and the treatment of those who spoke Polish.

13Some of the controversy involved Ms. Cierpich. She was first elected to the board in 2002, and was re-elected in May of 2003. Shortly after the second election, her car was vandalized. She believes this was because of disputes on the board. Ms. Cierpich was removed from her position through a board of directors’ resolution in July of 2003 as a result of alleged misconduct. A month later, Mr. Cobain, who had been elected to the board in 2003, tendered his resignation and called on the whole board to resign, stating in a memorandum that “the corporation is in a state of crisis and firm, intelligent action is needed urgently to bring it back from the brink of chaos”. He attributed this to what he saw as Ms. Cierpich’s improper removal from the board.

14In late 2003, most or all board members resigned and a new board took office. Mr. Cobain was president, and Ms. Cierpich was vice-president. Due to health problems, Mr. Cobain resigned in June 2004 and Ms. Cierpich became acting president. At the time Mr. Bekele made the purchase from the Cobains, there were six members of the board of directors: Ms. Cierpich (acting president), Carole Decelles (secretary), Ray Kirkpatrick, and Mr. A., Mr. B. and Mr. C. Ms. Cierpich, Mr. A., Mr. B. and Mr. C. were generally allied with each other. Part of the reason for this allegiance was apparently that they all spoke Polish. The approval of at least four of these six directors was required for a resolution approving a purchase.

B. Approval of Purchases: General Practice

15I heard from all witnesses about their experience with approval of purchases by the board of directors. On the basis of this evidence, outlined below, I conclude that the general practice of the board (prior to Mr. Bekele’s request) was to approve purchases within a maximum of seven business days following a meeting with the purchaser.

16Mr. Bekele’s real estate agent, Ms. Duthie, represented two purchasers of units in the building prior to Mr. Bekele, one in 1995 and one in 1999. Each was approved following a short meeting with the board. She testified that the general practice in such buildings is for members of the board to meet with the purchaser to ensure that the person is “established” and has no criminal record.

17When Mr. Cobain bought his unit in 2002 or 2003, Ms. Cierpich was one of the board members who interviewed him. The purchase was approved within three days of the meeting. When Ms. Decelles purchased her unit in 2001, she was required to provide a letter of employment, and received approval within 48 hours of her meeting with the board. She was involved as a board member in approving two or three other purchases, none of which took more than 72 hours for approval.

18Ms. Orser purchased her unit in 1992, and received approval the day after her meeting. She was a member of the board from 1993 until 2003, and rejoined in February 2007. She has been involved in over 60 purchases. She testified that in the period when she was involved prior to Mr. Bekele’s purchase, purchasers were typically asked for a letter confirming the length of their employment. Purchasers who had been employed in their present job for less than three years would be asked for the name and phone number of references. A purchaser currently renting an apartment would be asked for a reference from that apartment building. The purpose of these requests was to ensure that the buyer could pay the maintenance fees.

19Ms. Orser testified that none of the purchases in which she was involved took more than seven business days from the time of the meeting with the purchaser for approval. She testified that if purchasers had particular reasons that they needed approval quickly, this was generally accommodated. Her experience was that the factors considered in approvals were the prospective purchaser’s ability to pay maintenance fees and the existence of a criminal record that would indicate danger to other residents.

20Mr. B. testified that his application took 60 days for approval and was finalized on the last day prior to closing. I reject Mr. B’s evidence. It is inconsistent with that of all other witnesses, there was no documentary evidence to support it, and it is not logical to expect that a purchaser and vendor would be willing to wait for approval until the last day prior to closing.

C. Mr. Bekele’s Purchase

21Mr. Bekele works for the Toronto Transit Commission as a streetcar driver. He first came to Canada from Ethiopia in September of 1982. In 2004, he decided to purchase an apartment and did so with the assistance of his good friend, Chris Fuhrmann. Ms. Fuhrmann assisted Mr. Bekele with the purchase process, and they made a private arrangement whereby she would pay a portion of the purchase price and he would repay her. Both Ms. Fuhrmann and Mr. Bekele describe their relationship as mother-son, although they are not technically parent and child. They first met when Mr. Bekele worked for Ms. Fuhrmann’s husband.

22Mr. Bekele, Mr. Cobain and Ms. Cobain signed the agreement of purchase and sale on July 16, 2004. The next day, Ms. Duthie, the real estate agent, took a copy of the agreement to the management office. She scheduled an appointment for Mr. Bekele to meet representatives of the board of directors on July 22, 2004.

D. Change in the Relationship Between Mr. B. and Mr. Cobain

23Prior to the final approval by the board of directors, numerous incidents occurred which shed light on the reason for the delay. The first was a change in the relationship between Mr. B. and Mr. Cobain. A day or two after the agreement of purchase and sale was signed, Mr. Cobain noticed that Mr. B.’s treatment of him changed in a distinct and negative way. Mr. Cobain believed that this change in attitude was caused by Mr. B.’s disapproval of Mr. Cobain’s sale of his unit to a Black man. Ms. Cobain had told her husband that she had mentioned to Mr. B. the previous evening that they had sold their unit to an Ethiopian, and he attributed Mr. B.’s change in attitude to this fact. In his evidence, Mr. B. denied that his treatment of Mr. Cobain changed, stating that they had never been “civil” to each other.

24I fully accept Mr. Cobain’s evidence on this point, and reject that of Mr. B. Mr. Cobain was a most credible witness. Unlike all of the other witnesses who were resident in the building when Mr. Bekele applied for the apartment, Mr. Cobain was not strongly allied with one faction or the other in the dispute between members of the board of directors. He acknowledged that both sides were responsible for the dispute and, to the extent that he was somewhat more aligned with one side prior to the sale, it was that of Mr. B. and Ms. Cierpich. He had defended Ms. Cierpich when she was removed as a director. In his evidence, Mr. Cobain was forthright about what he did not remember, and was careful to give the Tribunal an accurate and balanced picture of events from his perspective. When a document was put to him that he thought suggested that he had been wrong about an issue, he asked the Tribunal for an opportunity to clarify his evidence. While he acknowledged that his memory of some details surrounding the sale was unclear because he was ill at the time, he was most certain that Mr. B.’s attitude towards him had dramatically changed after July 16, 2004.

25In contrast, I found Mr. B.’s testimony most unhelpful and his evidence on this and many other points not credible. His testimony often conflicted with that of other witnesses and his answers focused upon justifying his and the respondent’s actions rather than assisting the Tribunal in understanding events. His testimony was inconsistent: he denied that he and Mr. Cobain were friendly; on the other hand he testified that Mr. Cobain had once asked him to take care of Mr. Cobain’s wife after Mr. Cobain died. He attempted to impugn Mr. Cobain’s character in various ways. He gave no detail that would make his version of his relationship with Mr. Cobain believable.

26Accordingly, I find that Mr. Cobain and Mr. B. had formerly had a good, friendly relationship and that Mr. B. treated Mr. Cobain rudely after Mr. B. found out about the sale to Mr. Bekele. In the absence of any credible explanation from Mr. B., I infer that this was because of Mr. Bekele’s race, colour, and place of origin.

E. The July 22, 2004 Meeting

27Ms. Fuhrmann and Mr. Bekele arrived promptly for the scheduled meeting with the board of directors on July 22, 2004. The property manager and Ms. Cierpich were present. The other board members were late. It took 30 to 40 minutes for the meeting to start, and three other directors (Mr. Kirkpatrick, Mr. A. and Mr. C.) only arrived once Ms. Fuhrmann asked the property manager to call them.

28The property manager went through a checklist with Mr. Bekele that documented various building rules. The directors asked Mr. Bekele how he planned to finance the purchase, and he stated that it was a “cash deal”. They requested a letter from his employer that included his rate of pay. Ms. Cierpich also asked Mr. Bekele for a recent bank statement. Ms. Fuhrmann and Mr. Bekele objected that the request for the details of his salary and the bank statement were inappropriate and Ms. Cierpich replied that the by-laws of the corporation had changed. Ms. Fuhrmann asked for a copy of the by-laws but was not supplied with them.

29Ms. Cierpich testified that this was her first interview of a prospective purchaser as acting president. She said that prior to the interview she went to the property manager’s office and asked him for the relevant forms to prepare herself. Her recollection was that she believed that there were no forms in the corporation’s records so she received one from the property manager. She testified that, as a result of her poor English, when she said that the by-law had changed she meant that the form had changed. She said that she made the request for a bank statement so that the board could approve the purchase right away if Mr. Bekele could prove that he had sufficient money in his account to pay the maintenance fees.

30I do not accept Ms. Cierpich’s explanation of why she asked for a bank statement. It does not make sense in the circumstances. The forms that were used make no reference to bank statements, although one form did request a letter of employment including the person’s salary, which appears to have been a change from the previous practice. However, if Ms. Cierpich meant to refer to the form then she would have shown it to Ms. Fuhrmann when Ms. Fuhrmann asked for a copy of the by-law. Finally, if Ms. Cierpich expected that provision of the bank statement could lead to a faster approval, surely she would have said so when Mr. Bekele and Ms. Fuhrmann challenged her on the appropriateness of asking for these documents.

31In his statement to the Commission’s investigator, Mr. B. stated, “[Joanna Cierpich] was afraid that because he offered to pay cash – his money could come from drugs.” In his evidence at the hearing, he testified that she made this comment in 2006, not at the time of Mr. Bekele’s application. He then said he was not even certain that she said it. Ms. Cierpich denied ever making this statement.

32I find that Ms. Cierpich did tell Mr. B. that she was concerned that Mr. Bekele’s money to buy the apartment could have come from drugs, and that this is the reason that she asked Mr. Bekele for a bank statement. The respondent, who called Mr. B. as a witness, has suggested no legitimate reason that he would make this up. In my view, whether Ms. Cierpich said so in 2004 or 2006, it provides insight into her state of mind about the approval of Mr. Bekele’s purchase and suggests that her actions were influenced by a stereotype that people of colour are more likely to deal in drugs than others.

F. The July 29, 2004 Meeting

33On July 27 or 28, 2004 Mr. Bekele gave the corporation a letter from his employer that included his length of employment, hourly wage, and number of hours per week worked. The property manager called him and asked him to attend at the building on July 29, 2004 at 7:00 PM for another meeting, and said that he should not be late.

34Mr. Bekele, Ms. Fuhrmann and Ms. Duthie attended the meeting. The property manager was there, but only two directors: Ms. Cierpich and Mr. A. Ms. Cierpich testified that she had left messages on Mr. A., Mr. B. and Mr. C.’s answering machines that afternoon to notify them of the meeting. However, Mr. B testified that he did not know about the meeting. Ms. Cierpich also testified that the property manager had contacted Mr. Kirkpatrick and Ms. Decelles that afternoon, but Ms. Decelles denies that she received any notification.

35The meeting continued despite the limited attendance. Mr. A. asked Mr. Bekele and Ms. Fuhrmann various questions about the nature of their relationship, insinuating that she could not be his mother because she is White. He questioned their statement that she was like his adoptive mother and asked to see the adoption papers (although he said he was joking about this). Mr. Bekele was told that his purchase could not be approved that day because there was no quorum of board members present. The property manager told him that there was a meeting on August 3, 2004 that the board members would be attending and that the approval would be ready then.

36Ms. Duthie, Mr. Bekele’s real estate agent, went to the Cobains’ apartment and advised them that the purchase of their unit had not been approved. Ms. Cobain came downstairs to speak with Ms. Cierpich and complained about the time that the approval was taking. Ms. Cierpich testified that when Ms. Cobain asked her to do something to get a quorum, she went and knocked on the doors of two or three other board members, but they were not home. She said that she did not go to Ms. Decelles’s door because Ms. Decelles had asked her not to knock on her door or call her at any time.

37In cross-examination, Commission counsel confronted Ms. Cierpich with her statement to the Commission investigator, in which she did not mention going to knock on doors on July 29, 2004. She testified that she had forgotten it at that time and only remembered when she saw a letter from Mr. Cobain mentioning that his wife had gone downstairs. No other witnesses testified about Ms. Cierpich going to knock on doors during or following this meeting nor did the respondent’s representative ask them about this in cross-examination. I do not accept Ms. Cierpich’s evidence that she went to knock on board members’ doors. In my view, this is something that Ms. Cierpich would have remembered when speaking to the Commission investigator, and I also believe that others could have confirmed it had she done so.

38I find that Ms. Cierpich did not make reasonable efforts to ensure that a quorum was present at the July 29, 2004 meeting. Even assuming that board members did receive messages on their machines to attend the meeting, I have found that she made no efforts to find two more board members to constitute a quorum at the meeting itself.

G. Board Members’ Concerns About Mr. Bekele

39Mr. B. testified that at some point following the July 22 meeting, Mr. A. expressed concerns about Mr. Bekele. He testified that Mr. A. said that he was frightened, concerned that Mr. Bekele was a member of al-Qaeda who had infiltrated the Toronto Transit Commission. Mr. B. gave these comments credence, to the point where when Commission counsel asked him about the al-Qaeda comment during the hearing, he asked if he could ask Mr. Bekele if he was or was not associated with al-Qaeda. Mr. B. also told the Commission’s investigator that some board members were so frightened by Mr. Bekele that they did not want to meet with him again, although in his evidence before the Tribunal, Mr. B. denied this.

40Mr. A. thought it bizarre that Ms. Fuhrmann, who is White, claimed to be Mr. Bekele’s mother. Mr. B. testified that Mr. A. told him that Ms. Fuhrmann and Mr. Bekele said that they had money to buy the entire building and this also made him nervous. Mr. A. was amazed that Mr. Bekele would “all of a sudden” have money to purchase the unit.

41The property manager also raised concerns. He told Mr. B. at some point either before or after Mr. Bekele moved in that he was concerned that Mr. Bekele was moving from a certain area of Toronto (Jamestown) and that there were lots of cockroaches in the buildings there.

42Taken together, there is no question that these comments, and the credence Mr. B. gave them, reflect stereotyping arising from Mr. Bekele’s race and ethnic origin. The expressions of fear of Mr. Bekele reflect general anti-Black racism and stereotypes of Black people as likely to be violent or dangerous. The concern about the relationship between Ms. Fuhrmann and Mr. Bekele reflects, at least in part, a racially biased suspicion of close relationships between people of different races. The al-Qaeda comments reflect general prejudice and stereotyping against people of colour. The concern about cockroaches reflects a stereotype that people of colour are dirty or inattentive to cleanliness.

43While I have rejected much of Mr. B.’s evidence, I find that these statements were made. The respondent’s representative did not take issue with this testimony nor call as witnesses the people alleged to have made the statements. I draw the inference that they would have confirmed Mr. B.’s evidence. I see no reason that Mr. B. would have made up these events. To do so would have been against his interest since he was a respondent at the time he told the Commission’s investigator about the comments.

44Ms. Cierpich denied that these concerns were raised with her or that she heard about them. I do not accept this evidence. Mr. B. described Mr. A. as being considerably alarmed and upset in conveying his fears about Mr. Bekele. It is inconceivable that he would convey this to Mr. B., who was not present at the approval meetings, and not to Ms. Cierpich, who was. Mr. B. believed them, to the point where he thought the question of whether Mr. Bekele was involved with al-Qaeda should be clarified at the hearing. Mr. B. started treating Mr. Cobain differently as a result of the sale of his share to a man from Ethiopia. All witnesses described Ms. Cierpich, Mr. A., Mr. B., and Mr. C. as allies on the board. Ms. Cierpich was the president and a leader in this group. I find it more likely than not that two members of the board of directors, Mr. A. and Mr. B. and the property manager expressed racially based or motivated concerns to Ms. Cierpich about the possibility of Mr. Bekele moving into the building. The board members were decision-makers regarding the approval of Mr. Bekele’s purchase of Mr. Cobain’s unit, and the property manager had an important administrative role in the approval process.

H. Ms. Cierpich’s Vacation and the August 3, 2004 Meeting

45Ms. Duthie, Mr. Bekele’s real estate agent, testified that on August 3, 2004, she attended the building as instructed to obtain the resolution approving the purchase. She waited outside the room where the meeting, which dealt with other matters, was taking place. However, at the end of the meeting board members “scattered” and she did not get any documents. She then went upstairs to the main floor office where, she said, the property manager, Joanna Cierpich, and another board member were present. The property manager appeared to make phone calls to locate other board members but was unsuccessful. He said that he did not have a quorum and could not get the documents. Again, the sale to Mr. Bekele was not approved.

46Ms. Cierpich denies being at the meeting or in Toronto on August 3, 2004. She testified that was on vacation at a cottage near Sudbury from the evening of July 29, 2004 until August 28, 2004. She testified that she left the approval of Mr. Bekele’s purchase in the hands of the property manager and assumed that it would happen quickly. She only returned to Toronto once, on August 18, 2004 to attend a special shareholder meeting. She said that during this visit, no one raised the issue of the approval of Mr. Bekele’s purchase with her and she did not address it with anyone. There was no telephone at the cottage and cell phones did not work in the area. She testified that she made no calls back to the building while away.

47I find that Ms. Cierpich was not at the building on August 3, 2004. Ms. Duthie’s recollection of the events of August 3 was, in general, unclear during her testimony and I believe that she was mistaken that Ms. Cierpich was present. While other board members were at the meeting and could have confirmed whether she was present, and minutes of the meeting must have been taken, I heard no evidence on this point other than Ms. Duthie’s testimony.

I. The August 10, 2004 Resolution

48Mr. Kirkpatrick and Ms. Decelles heard that the Cobains and Mr. Bekele were concerned about the delay. With the assistance of a former board member, Ms. Orser, they entered the property manager’s office using Mr. Kirkpatrick’s key and prepared a document that purports to be a copy of a resolution, consented to by the directors of the corporation, approving the sale of the Cobains’ share to Mr. Bekele. The resolution is dated August 10, 2004. They delivered a copy to Ms. Duthie and left a copy on the property manager’s desk.

49I heard considerable evidence about whether this resolution was valid and whether it was appropriate for Mr. Kirkpatrick and Ms. Decelles to sign it. It is unnecessary and would be inappropriate to make any findings on this issue. I find that Ms. Cierpich and Mr. B. genuinely believed that it was not a valid resolution, as it had not been approved by a quorum of directors. Ms. Decelles genuinely believed that it was appropriate for her to sign the resolution, as a quorum had been present at the initial meeting. Mr. Bekele and those representing him genuinely believed that the purchase had been approved.

J. Events After Ms. Cierpich’s Return From Vacation

50Ms. Cierpich returned from vacation on August 28, 2004. She testified that she learned about the August 10 resolution on that day. She contacted the manager and Mr. A., Mr. B. and Mr. C., and the five of them signed a notice to Mr. Bekele’s lawyer stating, “This is to inform you that the Board of Directors of Alderwood Towers Have [sic] not made a decision at this point to approve the prospective purchaser Mr. KIFLE BEKELE” [capitals in original]. She testified that her priority was to deal with what she saw as a very dangerous situation – where Mr. Kirkpatrick and Ms. Decelles had entered the office improperly and made a resolution that was not approved by the majority of the board. When asked in examination-in-chief why the other board members did not simply sign a new resolution right away approving Mr. Bekele’s purchase, she stated that it was important to recognize what had happened in the office. When it was pointed out to her in cross-examination that it would have taken only a few minutes to do so, she said that she did not know why they did not.

51Mr. Cobain testified that having heard that members of the board were challenging the August 10, 2004 resolution, he phoned Ms. Cierpich on the evening of August 31, 2004. He raised with her his view that the corporation was on the brink of a lawsuit. She was dismissive when he suggested this possibility. Mr. Cobain copied his letter confirming their conversation and cautioning about the possibility of a lawsuit to all shareholders and members of the board of directors. Ms. Cierpich did not remember this conversation. Mr. Cobain testified that he thought that the only possible reason the board could have for doing what it was doing was Mr. Bekele’s race, although he did not mention this to her.

52Also on September 1, 2004, Ms. Orser (the former board member) sent the members of the board a three-page letter that set out her view of the board’s legal obligations and her opinion that the board risked lawsuits if it failed to follow them. The letter included statements that the board could not conduct itself in a manner that violated human rights or cast “a shadow of discrimination and / or prejudice” and suggested that the property manager had made “prejudicial comments”.

53On September 2, 2004, the board of directors held a meeting at which it suspended Mr. Kirkpatrick and Ms. Decelles for having signed the resolution regarding the sale of the share. Mr. Kirkpatrick and Ms. Decelles then left the meeting. The minutes of the meeting also record that a “Commission of investigation will be created by J. Cierpich to claryfied [sic] this event [the signing of the resolution approving the sale]”. Once again, however, the board did not approve the share purchase. Ms. Cierpich testified that it was because someone came down to the meeting room and said that there was a dispute in the property manager’s office. She then returned to her unit because she wanted to “save her papers” and was called to come downstairs to the office.

54There was then a confrontation that included the Cobains, Ms. Cierpich, Ms. Orser, Verna Gatt (a resident), Mr. B., Ms. Decelles, and the property manager, and ended in the police being called. Mr. B. made a tape recording of the meeting, which was admitted into evidence. The discussion included threats of lawsuits, repeated questions as to why the purchase was not approved, and accusations that it was a result of Mr. Bekele’s race. Ms. Cierpich said that Mr. Bekele was not approved because there was not a quorum at the second meeting. Neither Ms. Cierpich nor Mr. B. specifically denied the allegations that the delay was a result of Mr. Bekele’s race.

55Ms. Orser also said that she heard Mr. B. use a racial epithet during this conversation, and suggested that Ms. Cierpich would have heard it, given where she was standing in relation to Mr. B. If such a comment was made, I do not believe it has been proven that Ms. Cierpich heard it. It was not clearly audible on the recording that was played in the hearing, despite the fact that many other comments made by Mr. B. were audible. Often many people were speaking at once, and the atmosphere was clearly charged and heated. I accept Ms. Cierpich’s evidence that she did not hear any such comment.

56Ms. Decelles testified that during this meeting she told Ms. Cierpich that what they were doing was illegal and Ms. Cierpich laughed and said that she did not care, that she would do what she wanted. I find that Ms. Cierpich did not make this comment; it was not recorded on the tape.

57On September 7, 2004, Ms. Decelles sent a memorandum to shareholders that accused the other four board members of violations of various laws, including the Canadian Charter of Rights and Freedoms, and asked for an explanation from them of the reasons for their actions.

K. Approval Is Received

58A document dated September 7, 2004, signed by Ms. Cierpich states that she, Mr. A., Mr. B., and Mr. C. met by phone on September 3, 2004 and approved the sale. The property manager faxed the resolution, dated September 3, 2004, to Mr. Bekele’s lawyer on September 8, 2004, with a note on the cover page that included the statement, “sorry for delay”.

L. Continuing Exchanges of Notices

59This was not, however, the end of the war of words. It continued even after Mr. Bekele moved into the building on September 27, 2004. Various letters were circulated to all residents and/or posted in the building. On September 29, 2004 Mr. B. wrote a letter copied to all members of the building about the approval. On September 30, 2004, Ms. Cierpich sent her version of events. On October 6, 2004, Ms. Orser and other residents circulated a six-page “expose”. On October 29, 2004, Ms. Cierpich circulated a letter saying “I don’t agree with your’s [sic] expose”. On October 31, 2004, Mr. B. circulated his own version of events.

60There is no need to go into the content of these letters in further detail except to note that the October 6 “expose” included allegations of racial epithets being made publicly and detailed discussion of the approval process. I do not find that it has been proven that these racial comments were made, as I heard no direct evidence from anyone who stated that they heard them, except for the comment allegedly made by Mr. B. during the September 2 meeting that I have addressed above.

61Commission counsel asked Ms. Cierpich whether she investigated any of the allegations of racism in the various letters that were sent. She did not. In particular, she said that it was not her responsibility to determine who made racist comments or why, and that it would have been wasting her time to do so.

ANALYSIS: ALLEGED VIOLATION OF THE CODE

A. Application of Section 2(1)

62Mr. Bekele’s complaint relates to occupancy of accommodation under section 2 (1) of the Code. Section 2(1) provides as follows:

Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance.

The agreement of purchase and sale related to shares in the corporation and rights under an occupancy agreement. It falls under s. 2(1).

B. Potential Liability of An Individual Director

63Counsel for the Commission brought to my attention the decision of the British Columbia Human Rights Tribunal in Outingdyke v. Irving Apartments Ltd, 2005 BCHRT 443 at paras. 94-95, but argued that I should not follow it. The B.C. Tribunal dismissed the portion of a complaint against named members of a board of directors of a co-operative apartment on the basis that the action refusing approval for a purchase was that of the board itself and not the individual board members.

64The Outingdyke decision does not reflect the law in Ontario. Members of a corporate board of directors may be liable for their actions that breached the Code, even if such actions were taken in the course of exercising their corporate responsibilities: see, for example, Dudnik v. York Condominium Corp. No. 216 (1988) 1988 CanLII 8884 (ON HRT), 9 C.H.R.R. D/5080 at para. 38777 (Ont. Bd. Inq.).

C. Did Ms. Cierpich Discriminate Against Mr. Bekele?

(i) The Conflicts On the Board

65I will deal first with the relevance of the conflict between the two groups on the board of directors, which was emphasized by the respondent and her representative. I accept that there was and remains a tremendous degree of conflict in the building and that many of the members of the other faction in the building have considerable dislike for Ms. Cierpich. Indeed, I find that this conflict influenced the evidence of Ms. Orser and Ms. Decelles and for the most part, I found their evidence unhelpful because they focused on justifying their position in the dispute, rather than on assisting the Tribunal. I accept that these two witnesses had motive to and sometimes did exaggerate facts that could prove detrimental to Ms. Cierpich. With the exception of Ms. Orser’s evidence about the usual time frame for approval of purchases, I have not relied upon their evidence in reaching my conclusions.

66This complaint relates to events that occurred while Ms. Cierpich was acting president and she and her allies constituted a majority of the board. This board was running the corporation and Ms. Cierpich was its leader. The Tribunal must evaluate her conduct during the period when Mr. Bekele was seeking approval to purchase the unit and the effects of her actions upon him.

(ii) Ms. Cierpich’s Actions During the Approval

67I find that in her actions throughout the process of Mr. Bekele’s application, Ms. Cierpich discriminated against Mr. Bekele on the basis of race, colour and ethnic origin, treating his application differently than she would have had he been White. She failed to take the steps that she should have to ensure that his application was treated without discrimination and she acted to delay the application and to attempt to dissuade Mr. Bekele from continuing with his purchase.

68Mr. Bekele’s application took about four times as long as the longest approval of any other purchaser, in a building in which none of the occupants was Black at the time. His representatives were required to attend at the building three times, each time not receiving approval and being told to come back. In the absence of an acceptable non-discriminatory explanation by the respondent, this dramatically differential treatment of a Black purchaser shows that anti-Black racism was a factor in the decision.

69Ms. Cierpich states that race played no part in any of her actions and that there were non-discriminatory explanations for the delay. I do not accept this evidence or her testimony about her role in the delay. Her explanations at nearly each stage of the process are not convincing, and, taken together, the number of unreasonable explanations further damages Ms. Cierpich’s credibility.

70In finding that Ms. Cierpich’s actions were tainted by racial prejudice, I rely first upon her actions during the July 22, 2004 meeting. I have found that Ms. Cierpich’s request for a bank statement reflected the stereotype that because of his race, Mr. Bekele was more likely to be involved with drugs. I find that this stereotype also influenced Ms. Cierpich’s other actions with regard to the processing of the application.

71Second, I take into account Ms. Cierpich’s involvement in discussions in which others involved in the decision used racial stereotyping. As president of the corporation and a board member she did nothing to address these comments or ensure that such stereotyping did not influence the decision. Her failure to do so influences my conclusion that Mr. Bekele’s race had a role in her actions, and I draw the inference that her actions were affected by these expressions of prejudice.

72Third, and most significant, Ms. Cierpich did not arrange for a simple, routine resolution to be passed by the directors and has provided unreasonable explanations for her failure to do so. This failure to act, I infer, was because of Mr. Bekele’s race, colour and ethnic origin.

73If Ms. Cierpich had intended to have Mr. Bekele’s purchase approved at the July 29, 2004 meeting, she would have taken steps to ensure that a quorum was present or the resolution was approved that evening. There was no difficulty obtaining the signatures of four members of the board on the August 28, 2004 letter stating that the purchase was not approved, nor was there difficulty obtaining everyone’s presence for the meeting on September 2, 2004 to deal with the actions of Mr. Kirkpatrick and Ms. Decelles. The July 29, 2004 meeting ended with Ms. Cierpich and the property manager telling Mr. Bekele to return to pick up the approval five days later, on August 3, 2004. Had she truly intended that the purchase be approved, she would have undertaken or instructed the property manager to obtain the approval as soon as possible and send it on. An emergency or phone meeting could have been called. Given the time that had passed and the evident importance of finalizing real estate transactions, the instruction to return five days later is not the response of a board president taken by surprise by the inability to obtain a quorum. Rather, it suggests that she participated in causing the delay.

74Ms. Cierpich says that when she left for vacation on July 29, 2004, she left the matter in the hands of the property manager and expected that the transaction would proceed smoothly. I do not accept this evidence. The Commission asked that I draw an adverse inference from the failure of the respondent to call the property manager as a witness. I do so. In my view, it is appropriate for me to draw the inference from the failure to call him as a witness that he would not have supported her version of events. Moreover, Ms. Cierpich’s statement that she expected that the property manager would easily obtain approval was inconsistent with her other testimony about the lack of cooperation and strained relations on the board that, among other things, caused her to be reluctant to even call or knock on Ms. Decelles’s door. I find that Ms. Cierpich knew that the matter would be delayed during her vacation.

75Ms. Cierpich’s actions when she returned and learned that Mr. Kirkpatrick and Ms. Decelles had signed the August 10 resolution are also inconsistent with the suggestion that the delay was unexpected to her and that she acted to obtain fast approval. She was able to obtain the signatures of four board members on the August 28 letter to Mr. Bekele’s lawyer stating that the purchase had not been approved and call a special meeting for September 2, 2004 to ask Ms. Decelles and Mr. Kirkpatrick about their actions and suspend them from the board. Yet the purchase approval meeting was not held until five days after her return from vacation, on September 3, 2004, and a copy of the resolution was not sent to Mr. Bekele’s lawyer until ten days after her return. Ms. Cierpich did nothing to determine why the purchase had not been approved in her absence.

(iii) Failure to Investigate

76Ms. Cierpich also violated the Code through her failure to investigate or take action when allegations or expressions of racism were made. The Tribunal has recognized, in the workplace context, that there are duties under the Code “not to condone or further a discriminatory act that has already occurred” and “to investigate a complaint of discrimination”: B.L. v. Marineland of Canada Inc., 2005 HRTO 30 at paras. 51-53 and cases cited therein. The Code, I find, imposes similar duties in the housing context. Such duties apply to Ms. Cierpich, the president of a corporation aware of allegations of discriminatory conduct by its representatives and board members. In my view, the Code imposes a general obligation on those in positions of power within organizations to ensure that credible allegations that its representatives have acted in a discriminatory manner are taken seriously.

77Even on Ms. Cierpich’s version of events, she violated this duty. She took no steps to investigate the allegation in Ms. Orser’s September 1 letter that the property manager had made “prejudicial” comments. She participated in the July 29 meeting and did nothing to stop Mr. A. from asking inappropriate questions about the relationship between Mr. Bekele and Ms. Fuhrmann and insinuating that there was something untoward because he is Black and she is White. She did not raise this matter with Mr. A. nor take any steps to ensure that the decision was not tainted by racism. Finally, she did not do anything to commence an investigation when letters were sent to all residents suggesting that the corporation’s employee and board members had made racist comments. These failures by the president of the corporation to deal with serious allegations of racism tainting its actions stand in sharp contrast to the creation of the “commission of investigation” regarding the August 10 resolution. Moreover, I have found that she was aware of additional racist comments that she denied knowledge of, and her failure to take any action in response to them is obviously also a breach.

(iv) Ms. Cierpich Violated the Code

78Taking all of the evidence into account, I believe that the application was only finally approved because of the threats of legal action and the open confrontation in the building, and because of the persistence of Mr. Bekele, Ms. Fuhrmann, and the Cobains. Ms. Cierpich’s actions were not consistent with an intention to approve the purchase and she has given no reasonable explanation for them, leading to the conclusion that they were affected by prejudice on the basis of race, colour and ethnic origin. She failed to investigate or cause an investigation of serious allegations of discrimination within the corporation she led. Accordingly, I conclude that she violated Mr. Bekele’s rights under s. 2(1) of the Code.

REMEDY

79The Tribunal’s remedial powers are set out in s. 41 of the Code as follows:

41. (1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,

(a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

80The Commission and the complainant ask that I make an award of $10,000 in general damages and $2,000 in damages for mental anguish under s. 41(1)(b). They also ask that I award $400 in special damages pursuant to this section to compensate for additional legal fees incurred by Mr. Bekele as a result of the delays in obtaining approval. They seek an order under s. 41(1)(a) that if Ms. Cierpich plans to seek a position on the board of the corporation, she first (i) at her own expense, attend a human rights training session to be approved by the Commission that addresses, among other things, the obligation of a board of directors to maintain an environment for shareholders that is free from discrimination with respect to race, colour, and/or ethnic origin, and (ii) send a letter to the Commission notifying it of her intention to re-join the board, and confirming that she has attended such a training session.

A. Public Interest Remedy

81Public interest remedies should (i) promote compliance with the Code; (ii) reflect the facts of the case and the violation of the Code that the Tribunal has found; and (iii) be remedial, not punitive: Pchelkina v. Tomsons, 2007 HRTO 42 at paras. 33 and 34; Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 91. The remedy proposed by the Commission promotes these objectives and I will make the award requested. Training will assist the Respondent in understanding the law and her obligations, should she decide to return to the board of directors. The proposed remedy responds to the breach and its circumstances by applying only if Ms. Cierpich does so. She is not currently serving on the board and expressed, through her representative, that she does not intend to seek a position again.

B. Settlements With Other Respondents

82In determining general and special damages, I have taken into account that the complainant has settled his complaint as against three other respondents – the property manager, Mr. B., and the corporation. Each of these settlements provides that the allegations are neither admitted nor retracted. It is, obviously, inappropriate to determine whether these individuals violated the Code. However, my award of damages takes into account that the complainant also filed and pursued his complaint against the corporation, the property manager, and Mr. B. and, in doing so, expressed his view that they were also responsible for the damages he experienced. Accordingly, my award of damages reflects only my assessment of Ms. Cierpich’s degree of responsibility. Had the complaint proceeded as against all respondents, the total damages awarded to Mr. Bekele may have been higher.

C. General Damages

83The Tribunal makes general damage awards to compensate for the intrinsic value of the infringement of the complainant’s rights. In Sanford v. Koop, 2005 HRTO 53 at para. 35, the Tribunal summarized the following factors used in assessing the appropriate quantum of general damages:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

84Mr. Bekele testified eloquently about the effects of the violation of his rights. He said that as a public transit operator, he deals with people without discrimination, and to receive this kind of treatment was devastating, uncalled for, and unexpected in this day and age. He said that the way he was treated made him feel inferior, small, and as though he did not belong in Canada. He found it disgusting and unfair. Speaking about his reasons for pursuing the complaint, Mr. Bekele said that he wanted the people involved, including Ms. Cierpich, to see how serious the effects of discrimination could be.

85Mr. Bekele testified about the continuing effect of the discrimination. He said that the events bother him and go with him every day. Through the various exchanges of letters, his purchase and human rights complaint have been subjects of discussion in the building and he feels that he has been stripped of his privacy.

86Ms. Fuhrmann also testified about the effects upon Mr. Bekele. She said that he was distraught and was injured because he knew that the delay was because of the colour of his skin. She testified that Mr. Bekele would have backed off had she and others not pushed him to proceed with the deal. Mr. Bekele described how he considered backing away from the purchase, but was assured by Mr. Cobain that not everyone in the building felt the same way about people of colour and urged him not to back off.

87I accept Ms. Fuhrmann and Mr. Bekele’s evidence about the effects upon him. Ms. Cierpich and other members of the board at the time continue to live in the building. Since Mr. Bekele lives in close proximity to some of those involved, this discrimination has a particularly profound impact upon him. Mr. Bekele took the commendable step of standing up against discrimination, in circumstances where it might have been easier to back off from the purchase. He has paid a significant personal price for doing so, and the award should reflect that.

88In terms of the seriousness of the conduct, I have found that Ms. Cierpich was one of a group of people who attempted to deny Mr. Bekele accommodation because he was Black, and presumably to ensure that no Black person took up residence in the building. Discrimination relating to a person’s home is particularly egregious. Canadian law has, as long ago as the landmark judgment of Mackay J. in Re Drummond Wren, [1945] O.J. No. 546 at para. 18 (Ont. H.C.J.), recognized the seriousness of racial and ethnic discrimination in housing:

In my opinion, nothing could be more calculated to create or deepen divisions between existing religious and ethnic groups in this province, or in this country, than the sanction of a method of land transfer which would permit the segregation and confinement of particular groups to particular business and residential areas, or, conversely, would exclude particular groups from particular business or residential areas.

89Ms. Cierpich was the chair of the board. She took on the obligation and responsibility to lead it. Despite holding this position, she took no steps to try to prevent it from acting in a discriminatory manner and played a part in what I find was an attempt to drive away a Black purchaser. While I appreciate that she was new in this position and, to some extent, was required to rely upon the guidance of others, inexperience cannot justify or even explain her actions.

90Taking all these factors into account, in my view the appropriate award of general damages as against Ms. Cierpich for her part in the discrimination is $8,000.

D. Mental Anguish

91In Fuller v. Daoud, [2001] O.H.R.B.I.D. No. 19 at para. 66, the Board of Inquiry found that mental anguish:

… suggests a relatively high degree of mental pain and distress. It is more than mere disappointment, angry feelings, worries, resentment or embarrassment. Yet, it necessarily includes all of the foregoing. It does, however, include mental sensation of pain resulting from painful emotions such as grief, severe disappoint[ment], indignation, wounded pride, shame, despair or public humiliation: (see Black's Law Dictionary, 6th ed.). Mental anguish is a subjective suffering that does not require medical proof.

The factors taken into account in determining the quantum of mental anguish damages were set out in Sanford, supra at para. 68:

• The immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health – e.g. distress during employment, episodes of crying, sleeplessness, fearfulness, inability to pursue or resume regular activities
• The ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health, i.e. impact on personal and professional life, lack of trust in employment relationships
• Vulnerability of the complainant – e.g. age
• Objections to the offensive conduct
• Knowledge on the part of the respondent that the conduct was not only unwelcome but viewed as harassment or discrimination
• Anxiety caused by the conduct
• Frequency and intensity of the conduct

92It is evident from my findings of fact that Ms. Cierpich’s conduct was at very least reckless. The effects of the discrimination on Mr. Bekele certainly justify the requested award of $2,000 mental anguish damages for Ms. Cierpich’s role in the discrimination. I accept that the discrimination made Mr. Bekele “distraught” and continues to affect him.

E. Special Damages

93I make no award on account of special damages for additional lawyers’ fees, because the Commission and complainant have not provided sufficient evidence to establish his losses. Mr. Bekele testified about the amount he paid his lawyer, provided a copy of the cheque, and advised the Tribunal of the amount he believes lawyers usually charge for a straightforward real estate transaction. He testified that, due to the delays, the lawyer had to engage in additional contact with the building that had increased the costs, including attending at the building.

94I find that the Commission and Mr. Bekele have not met their onus to establish on a balance of probabilities that he incurred additional legal costs because of the respondent’s actions. Mr. Bekele did not have copies of any bill or docket. He testified that he did not ask his lawyer prior to the sale how much it would cost. While Mr. Bekele stated that the lawyer attended at and made phone calls to the building, I heard no evidence from anyone involved in such calls or visits. Finally, Mr. Bekele is not an expert on the legal cost of real estate transactions and it would be inappropriate to rely upon his general estimate.

F. Interest

95Under s. 128 (1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, prejudgment interest runs from the “date the cause of action arose”. In my view, this cause of action arose when the transaction was not approved on July 29, 2004. Accordingly, prejudgment interest shall run from this date at the rate of 2.3%. Postjudgment interest is payable pursuant to s. 129 of the Courts of Justice Act.

ORDER

96The Tribunal makes the following order:

(1) Joanna Cierpich shall pay Kifle Bekele $8,000 in general damages and $2,000 in damages for mental anguish, together with prejudgment interest on these amounts at the rate of 2.3% from July 29, 2004.

(2) If Ms. Cierpich plans to seek a position on the board of directors of the corporation, she shall first (i) at her own expense, attend a human rights training session to be approved by the Commission that addresses, among other things, the obligation of a board of directors to maintain an environment for shareholders that is free from discrimination with respect to race, colour, and/or ethnic origin, and (ii) send a letter to the Commission notifying it of her intention to re-join the board, and confirming that she has attended such a training session.