Patterson v. Ottawa Community Housing Corporation, 2009 HRTO 1033

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Phillip Patterson

Applicant

-and-

Ottawa Community Housing Corporation and Selma Nowe

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: July 13, 2009

Citation: 2009 HRTO 1033

Indexed as: Patterson v. Ottawa Community Housing Corporation

1This is an Application filed on December 7, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). Since he filed this Application, the applicant has also filed a number of Requests for Orders During Proceedings. This Interim Decision deals with his Requests. Also, by this decision, the Tribunal will also require the applicant to file submissions showing why his claim against the individual respondent raises matters within the Tribunal’s powers.

2The Application alleges discrimination in housing, goods, services or facilities, on the grounds of sexual orientation, family status and marital status. It arises out of the death of another individual, Richard Nowe, in December 2007. The applicant states that he was in a gay common-law relationship with the deceased. He alleges that the Ottawa Community Housing Corporation (OCHC) failed to contact him about the death of Richard Nowe, before the biological family of Mr. Nowe. He states that the result was that the family of Mr. Nowe took the belongings of Mr. Nowe to which he has a claim, and was able to take the body of the deceased without his knowledge.

3The individual respondent is the deceased’s mother. The applicant claims that she discriminated against him by, among other things, refusing to acknowledge the gay relationship and his rights to Mr. Nowe’s belongings.

4The individual respondent has filed a Response in which she disputes many of the factual assertions. She states that she has no knowledge of a common-law relationship between the applicant and her son, although she knew the applicant to be a friend of her son’s. She states that none of the documents relating to her son, such as the lease to his apartment, correspondence with social service agencies, and other personal papers, mention the applicant as a common-law spouse or someone who had a claim to her son’s property, and that her son never mentioned living with another person. She states that she could not afford to bring her son’s body back to Nova Scotia (where she lives) and so had him buried in Ottawa.

5In its Response, the OCHC also states that none of its information suggested that the applicant and the deceased lived together. Its records indicate that the applicant and respondent lived in separate OCHC apartments, in different OCHC Districts. It states that none of the documents provided by the deceased listed the applicant as a co-tenant, an emergency contact, or spouse. The OCHC states that it was unaware of any relationship between the applicant and the deceased at the time of the death, and simply provided the Ottawa Police Service with the name of next of kin when it was informed of the death.

WHETHER THE APPLICATION CAN PROCEED AGAINST SELMA NOWE

6The material before the Tribunal raises an issue about whether this Application can proceed against Selma Nowe. The Tribunal does not have a general power to inquire into all claims of unfair treatment. Its jurisdiction is based on the provisions of the Code, which prohibits discrimination in specific social relationships such as the provision of goods, services and facilities, housing, contractual relations and employment. The Code does not regulate relationships between individuals which do not have a basis in one of these social areas.

7The relationship between the individual respondent and the applicant appears to be, on the facts alleged by the applicant, a relationship between a family and the common-law spouse of one of its members. This is not an area that is governed by the Code.

8The Tribunal requests that the applicant provide it with his written submissions on why his claim against the individual respondent is in the Tribunal’s jurisdiction and should be decided by the Tribunal. These written submissions should be filed with the Tribunal (with copies to the other parties) by Monday, July 27, 2009. The Tribunal will consider the submissions before deciding whether to dismiss or proceed with the Application as against the individual respondent. The other parties are not required to respond to these submissions pending further direction from the Tribunal.

REQUEST FOR ORDER OF MARCH 23, 2009

9The applicant filed a Request for Order dated March 23, 2009, in which he asks that a security box at a bank branch in Ottawa “remain sealed, until Tribunal opens and/or orders the security box to be opened, with witness (bank official) to examine contents and distribute fairly.” He delivered a copy of the Request to the respondents, although not to the bank. The individual respondent opposes the Request on the basis, among other things, that the Tribunal has no authority to grant such an order, amounting to a “Mareva” injunction. She states further that a claim of discrimination is not a claim on the estate of the deceased and the applicant has no interest in the deceased’s assets. She also states that to the best of her knowledge, the safety deposit box referred to has been opened and emptied in any event.

10It appears that the order requested is moot, based on the undisputed assertions of the individual respondent. But it is not clear in any event how the applicant’s Request for Order arises out of his claim of discrimination under the Code. It appears rather to relate to an issue about the distribution of the assets of a deceased, which is not within the Tribunal’s authority to regulate. On the material before me, I am not convinced that the order sought is necessary for the fair, just and expeditious resolution of the Application. The Request is denied.

REQUEST FOR ORDER OF APRIL 11, 2009 (ADDING CITY OF OTTAWA AS A RESPONDENT)

11By Request for Order dated April 11, 2009, the applicant seeks to add the City of Ottawa (the City) as a respondent to the Application. The basis for the Request is that in Selma Nowe’s Response, she stated that the family “had no choice but to have the City of Ottawa bury Richard”. She provided information about the place of burial, which is in a “common grounds” section of a named cemetery.

12The applicant claims that the City of Ottawa participated in discrimination by burying the deceased in an unmarked grave. He states that the City discriminated against the deceased by treating him in an undignified manner, and against himself, by denying him the possibility of being buried together with the deceased.

13The City provided a Response to the Request, in which it states that it had no part in the burial of the deceased, other than making financial assistance available, through the Ontario Disability Support Program. According to the City, the family member or executor making the application for the financial assistance is entirely responsible for making all funeral and burial arrangements with the funeral home. The City’s only duty is to provide funding. The City offers its condolences to all parties in the dispute.

14Rule 1.7(c) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party. The Tribunal has stated that it would not be fair, just and expeditious to add a respondent unless there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant’s rights.

15In support of the Request to add the City, the applicant alleges that the respondent has violated the rights of the deceased by participating in his undignified burial. This cannot be a basis for adding the City. Even if the Code can apply to the treatment of a deceased person, after they are deceased (about which I have my doubts), this Application has not been brought on behalf of the deceased. Further, it does not appear that the applicant would be a person entitled to represent the deceased in an Application before the Tribunal.

16In terms of the discrimination against himself, the applicant alleges that the City participated in the denial of “closure” and the possibility of being buried together with his loved one.

17As I have indicated, the City disputes the basis of the applicant’s claim against it. But even on the basis of the applicant’s assertions, I cannot find that there are facts alleged that, if proven, could support a finding that the City violated the applicant’s rights. There are no facts alleged that suggest that the applicant was treated differently from other persons in a similar situation, but who are not, as the applicant identifies himself, gay and disabled.

18The Request to add the City as a respondent is therefore denied.

REQUEST FOR ORDER OF APRIL 11, 2009 (ADMITTING EVIDENCE)

19The applicant filed a Request for Order in which he asks the Tribunal to admit certain documents as evidence. It is not necessary to file a Request for Order for this purpose. Once an application is scheduled for hearing, parties are required, by the times set by the Rules, to provide each other and the Tribunal with all the documents they intend to rely on at the hearing. Any disputes over the admissibility or relevance of documents offered by the parties can be dealt with by the Tribunal after that.

REQUEST FOR ORDER OF APRIL 11, 2009 (ADDING INDIVIDUAL RESPONDENTS)

20The applicant filed a Request for Order in which he seeks to add two additional individual respondents to the Application. These additional respondents appear to be the brother of the deceased and either another relative or family friend of the deceased. The basis for the Request is that the respondent Selma Nowe referred in her Response to the fact that these two individuals came to Ontario on her behalf to make arrangements arising out of the death.

21The Tribunal is satisfied that there are no facts alleged that, even if proven, could support a finding that the proposed respondents violated the applicant’s rights under the Code. As I have stated above, the Code does not govern all relationships between people. There is no assertion that the applicant and these proposed respondents were in one of the relationships specified by the Code, such as provision of goods, services or facilities, employment, housing or contract.

22I am satisfied that there is no basis to add the additional individual respondents to the Application.

REQUEST FOR ORDER OF MAY 21, 2009 (ADDING FUNERAL HOME AND CEMETARY AS RESPONDENTS)

23The applicant seeks to add a funeral home and the cemetery in which the deceased is buried as respondents to the Application. The reason he cites for his Request is that he has now learned of their involvement in the events through the various materials filed by the parties or proposed parties.

24The fact that a person or company has been mentioned in materials filed in an Application is not a basis for adding a party absent allegations which, if proven, could support a finding that the proposed respondents violated the applicant’s rights under the Code.

25I am satisfied that there are no facts alleged that, if proven, could support a finding that the funeral home or the cemetery violated the applicant’s rights under the Code. As I have indicated, the Tribunal does not have a general power to inquire into all allegations of unfairness. Whatever may be the merits of the applicant’s concerns about the manner in which the deceased was buried, on the facts alleged, the Application does not raise an issue under the Code about the applicant’s right to equal treatment without discrimination on the basis of sexual orientation or disability.

REQUEST FOR A TRIBUNAL-ORDERED INQUIRY

26The applicant has requested that the Tribunal order an inquiry into the finances of the deceased, the finances of the deceased’s family, the contents of the security box and what has happened to those contents. He questions the family’s claim that they did not have money to properly bury the deceased. In his Request, he repeats his allegations about the manner of the deceased’s burial and the actions of the City, the funeral home and the cemetery. He also refers to the actions of the OCHC.

27He states that he requires an inquiry in order to determine if the deceased had a will and further, that it will allow the Tribunal to confirm whether perjury has taken place and to recover money owing to either the government of Ontario, the City or himself.

28The Tribunal denies the request for an inquiry. Many of the reasons given by the applicant for requesting an inquiry pertain to issues that are beyond the Tribunal’s authority, such as the settling of the estate of a deceased. Some relate to proposed respondents against whom I have found no basis to proceed. To the extent that some of the reasons relate to the applicant’s claim against the OCHC, I am not satisfied that an inquiry is necessary to the fair, just and expeditious resolution of that claim. There is no reason to believe that the Tribunal’s normal process of disclosure of documents and hearing evidence from witnesses will not result in the necessary evidence being available for the fair, just and expeditious resolution of the Application.

REQUEST TO CONTACT ATTORNEY GENERAL

29In correspondence dated May 21, 2009, the applicant asks whether the Tribunal contacts the Ontario Attorney General’s office on his behalf, or whether he must contact them directly.

30There are no issues in this Application that have led the Tribunal to contact the Attorney General. If the applicant wishes to do so, he must pursue that on his own.

CONCLUSION

31While the Tribunal has sympathy for the applicant’s distress over these circumstances, it can only act within its jurisdiction. While it may appear to the applicant that many of the events that have occurred are unfair, that does not mean that they are discriminatory within the meaning of the Code.

32The applicant’s written submissions on the issue of whether his claim against the individual respondent is in the Tribunal’s jurisdiction, must be filed with the Tribunal and delivered to the other parties by Monday, July 27, 2009, following which the Tribunal will make further directions or decide whether to dismiss the Application against the individual respondent.

33The applicant may wish to consult the Applicant’s Guide, available on the Tribunal’s website, www.hrto.ca, or from the Registrar’s office. Pages 2-3 of the Guide set out sources of assistance that may be available to him.

34I am not seized.