Deva Dondapaty v. Toronto Community Housing Corporation, 2009 HRTO 1172

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deva Dondapaty

Applicant

-and-

Toronto Community Housing Corporation

Respondent

DECISION

Adjudicator: Eric Whist

Date: August 6, 2009

Citation: 2009 HRTO 1172

Indexed as: Dondapaty v. Toronto Community Housing Corporation

APPEARANCES:

Deva Dondapaty, Applicant ) Bruce Best, Counsel

Toronto Community Housing Corporation ) Mary Boushel, Counsel

1Deva Dondapaty, (the “applicant”) alleges that the respondent, Toronto Community Housing Corporation (“Toronto Community Housing” ) discriminated against him on the basis of race, ethnic origin and disability contrary to section 5 or section 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant filed his Application with the Tribunal on September 29, 2008. He alleges that while he was serving as an elected tenant representative for West Acres, the Toronto Community Housing complex in which he lives, staff of Toronto Community Housing discriminated against him culminating in a decision by Toronto Community Housing to remove him from his formal position as a tenant representative for his housing community. The applicant further claims that Toronto Community Housing staff failed to appropriately intervene when he was subject to discriminatory treatment by other tenants. A particular concern of the applicant is that he was routinely excluded from positions of responsibility or treated as a subordinate by the respondent or other tenants.

BACKGROUND

3Toronto Community Housing is a social housing provider responsible for operating and managing 58,000 mostly subsidized housing units in the City of Toronto. At the time relevant to this case Toronto Community Housing was divided into 27 geographically based units known as Community Housing Units (CHUs) each with its own manager and dedicated staff.

4The applicant lives in a community known as West Acres which is located in “CHU 1”. The applicant’s complaint centres, in large measure, on the conduct of Barry Thomas the senior manager responsible for CHU 1, and Steve Marshall, the Health Promotions Officer for CHU 1.

5Toronto Community Housing has an established tenant participation process. Individual Toronto Community Housing communities elect tenant representatives, one for every 250 units. These tenants serve their own communities as well as sit on an umbrella council made up of all the elected tenant representatives in their CHU district. The council, which is known as the CHU Council, meets with Toronto Community Housing staff to discuss CHU wide priorities and needs and to recommend the allocation of resources for the Toronto Community Housing communities in the CHU district.

6The applicant self identifies as a South Asian man with a disability, epilepsy. He has been a tenant in Toronto Community Housing since 2001. In 2006 he moved into the West Acres community of Toronto Community Housing. The applicant was elected as one of two tenant representatives for West Acres in April 2006.

7The hearing focussed on 6 principal issues: the applicant’s involvement in the CHU-1 counsel; the applicant’s activities in the West Acres community including his relationship with his fellow tenant representative, A.G.; an incident involving the applicant and another tenant; the applicant’s involvement in the planning of an event to celebrate Asian and South Asian Heritage Month; an incident on May 23, 2007 in the CHU-1 administrative offices and finally, the fall out from the May 23 incident which culminated in the applicant’s removal as a tenant representative.

DECISION

8The Application is dismissed.

9The applicant is an animated, caring, individual with an interest in contributing to his community but I am of the opinion that as a tenant representative he was also a difficult person to work with. The evidence is that he did not always understand his role and he was prone to complain about how he was treated by others. However, I found his account of events, often expressed through rambling generalities, difficult to accept and ultimately not reliable. On certain key issues the applicant was not credible and, for the reasons which follow, I preferred the evidence of the respondent’s witnesses which was consistent, full of persuasive detail and clearly more credible.

EVIDENCE AND ANALYSIS

CHU-1 Council

10The applicant testified that the CHU-1 Council was made up of 15 elected tenant representatives and was “supervised’ by the CHU-1 Operations Manager, Mr. Thomas and the Health Promotions Officer (HPO), Steve Marshall. The applicant stated he was the only South Asian on the Council. The Council has an executive made up of a chair, vice-chair, secretary and treasurer. The applicant testified he was elected secretary to the Council and described his role as secretary as one that involved organizing Council meetings if the chair was not present and “announcing the agenda”. The applicant stated he would sometimes take minutes in response to pressure to do so although this was not part of the secretary’s duties. He repeated (in several different ways) that it was well known that it was not part of a secretary’s responsibilities to take minutes.

11The applicant testified that minutes used to be taken by the previous HPO but he was told by the present HPO, Mr. Marshall, that it was the applicant’s responsibility and that after being pressed to take minutes by staff he was similarly pressed to do so by other Council members. The applicant suggested that in being pressed to take minutes he was being treated like a clerk.

12The applicant described himself as an active and responsive member of the committee and did acknowledge that on one occasion Mr. Thomas had asked him to be quiet.

13Mr. Marshall and Mr. Thomas presented a different picture of the applicant’s expected role as secretary and his behaviour on the Council. Mr. Marshall testified that it was his understanding that the role of the Council’s secretary was to take minutes at meetings, to prepare final minutes and to distribute them. However, he testified the applicant did not see this to be his role, that the applicant saw the role of Council secretary more as an ambassador and that he was offended every time he was asked to take minutes. Mr. Marshall testified that the applicant would refuse to take minutes and that at the outset of every meeting there would be an argument as to who would take minutes with the result being that sometimes other Council members would take minutes, sometimes the applicant would reluctantly take them.

14Mr. Marshall also testified that the applicant would be disruptive at Council meetings, that he had his own topics he wished to discuss and that he would not necessarily wait until the appropriate time on the agenda to discuss these topics. He testified that the applicant would be argumentative. He testified that Mr. Thomas or other Council members would have to tell the applicant to respect the agenda and that while the applicant might change his behaviour for one Council meeting he would revert to his previous disruptive behaviour at the next meeting.

15Mr. Thomas testified that the applicant liked to get his own way at Council meetings and that when he did not he would, nonetheless, continue to argue his point even when a vote had been taken or the chair had said an issue had been dealt with. Mr. Thomas testified that two or three times he counselled the applicant about the role of the Council, the need for comportment and the importance of dealing with issues in a calm manner.

16It was the applicant’s contention that he was treated by fellow Council members as a note taker and that his views were not taken seriously and that his complaints to Toronto Community Housing staff about his frustrations in working on the Council were either ignored or not taken seriously and that nothing changed.

17I do not find the applicant’s assessment of the dynamics of the Council and how he was treated by the Council and by Toronto Community Housing staff to be reliable. This conclusion is based on my cumulative assessment of the applicant’s evidence and the evidence presented by the respondents’ witnesses. As I will note throughout my Decision I often found the applicant’s description or assessment of events or his role to be odd or exaggerated or so general in nature as to be of questionable reliability. It was often not credible. For example, in this instance I do not accept his contention that it was not the secretary’s role to take minutes and that taking minutes reduced the secretary’s role to a subservient one of note taker. The applicant’s description of the secretary’s role was both vague and odd. I prefer the detailed and consistent testimony of Mr. Thomas and Mr. Marshall that it was expected that the Council secretary take minutes and that the applicant, as secretary, could and did still play an active role on the committee. I find that the applicant had an inflated sense of the role of secretary given his description of the job and Mr. Marshall’s suggestion that the applicant saw the position as ambassador-like.

18I am prepared to accept that the applicant probably did have problems with his fellow Council members but he certainly did not provide a basis for finding that this treatment was related to his race or disability. I do not accept that when he was pressed to take minutes he was reduced to being a “note-taker” and this was discriminatory in that it obliged him to play a subservient role on the committee. I prefer Mr. Thomas and Mr. Marshall’s testimony which was that the applicant did have the opportunity to actively participate in the Council and that there was an explanation for the applicant’s difficulties with other Council members. Both Mr. Marshall and Mr. Thomas testified that the applicant’s conduct at Council meetings could be inappropriate in that he would interrupt others and would not respect the agenda. I accept as credible Mr. Thomas’s testimony that he tried to coach the applicant in order to help him to contribute more appropriately and effectively act as a Council member. I am prepared to conclude that the Toronto Community Housing, which had an interest in the CHU Council operating effectively, did play a supportive role to the applicant and did try to help him carry out his role as a tenant representative on the Council.

19It is perhaps helpful to state here that I found Mr. Thomas and Mr. Marshall to be credible witnesses given their clear, consistent, forthright and coherent testimony. I further note both are racialized persons with demonstrated experience working with both individuals and community organizations in multi racial environments. Mr. Thomas has a long history of working with community groups and notably was the executive director of a municipal race relations committee. Mr. Marshall has been working in community development for 18 years. I preferred their clear explanations and recollections to the applicant’s very general accounts and allegations which often were not credible.

West Acres

20An important role for tenant representatives in Toronto Community Housing is to organize events in their own community. West Acres is a small community with twelve two-story “walk-up” apartments. The applicant represented this community along with another elected tenant representative, A. G.. It is clear that the applicant’s relationship with Ms. G. was strained and that this is demonstrated by the plans for the community barbeque in the summer of 2007.

21The applicant testified that Ms G. did not like his ideas and that she had the support of Sam Corrado, the building superintendent. The applicant stated that Ms. G. and Mr. Corrado would give him only menial tasks to do in relation to the barbecue such as moving tables and chairs on the day of the event and that he believed this was because he was South Asian and that they knew he was a recipient of ODSP. He testified he was treated like a dirty creature. The applicant testified that he complained to Toronto Community Housing many times and put his complaint in writing. A letter from the applicant dated July 25, 2007 describes in some detail the applicant’s experiences with Ms. G. and the planning of the barbecue. The applicant testified that Toronto Community Housing’s response was essentially to tell him that he could organize the next event, a holiday celebration scheduled for December. He testified that he did not find this a satisfactory response.

22The applicant acknowledged that he participated in other West Acre community events such as community meetings, and would chair some of these meetings. He testified his issue was specifically the summer BBQ and how he was treated by Ms. G..

23Mr. Thomas testified that Toronto Community Housing was keen to encourage local community events such as barbeques and for tenant representatives to hold at least two meetings a year with tenants in their local community. He testified that he knew of at least one such meeting the applicant had chaired. He testified that he was also aware prior to the barbeque that the applicant and Ms G. did not get along. He testified that Ms G. had complained of the applicant badgering her and refusing to do legwork for events. Mr. Thomas testified that Ms. G. had threatened to resign. A previous HPO (Ms. Martens) had apparently considered the idea of having the applicant and Ms. G. take the lead on organizing different events.

24Mr. Thomas testified that he was under the impression that initially the summer barbeque did involve both the applicant and Ms. G. but that the applicant became upset when Ms. G., with input from Mr. Corrado, unilaterally postponed the barbecue because of rain and did not inform the applicant.

25Mr. Marshall also testified that Ms. G. and the applicant did not get along. He recalled having to organize a community meeting given this conflict and to assign Ms. G. and the applicant specific roles. He recalled having the applicant introduce staff while Ms G. took on a lesser role. Mr. Marshall stated that the Ms. G. did not like the spotlight while the applicant did- that he liked being up front. Mr. Marshall’s recollection of the barbeque was that as he was aware the applicant and Ms. G. were not getting along it was decided that Ms G. would take the lead at the barbeque while the applicant would take the lead organizing a December seasonal event. Mr. Marshal stated he knew that the applicant was upset about the barbeque and that the applicant posted notices around the community to say he had not organized the event and that Ms. G. was upset about these notices. Mr. Marshall testified that later the applicant raised the issue of the barbeque with Toronto Community Housing as an example of how he had been slighted and not respected.

26Mr. Corrado, the superintendent for West Acres, testified that Ms. G. and the applicant’s relationship was rocky and they did not agree on most things; for example, on what their respective roles would be in organizing events. He testified that the applicant would tell him that he disagreed with Ms. G. and he would ask Mr. Corrado to straighten it out. Mr. Corrado stated that, on the other hand, Ms. G. would tell him that the applicant was very uncooperative and wanted things his way. The witness stated he tried to get the two tenant representatives to work together but there was only so much he could do. He further stated that it was his understanding that because there was so much disagreement between the applicant and Ms G. that a decision was made that she would organize the summer barbeque and he would organize the December holiday party. Mr. Corrado testified that he was aware that the applicant received Ontario Disability Support Program benefits.

27Of note, the applicant was in India in December 2007 and therefore could not participate in the planning of the holiday event that followed the disputed summer barbecue.

28I am satisfied, based on the evidence before me, that Toronto Community Housing were aware of some tensions between the applicant and Ms. G. even prior to the 2007 summer barbecue and ultimately tried to resolve this by assigning them different responsibilities. Ms. G. was responsible for the summer barbecue and the applicant’s role in organizing this event was minor and indeed menial (carrying chairs and table). However, the evidence is also that Toronto Community Housing arranged for the applicant to have the lead responsibility for at least one tenant meeting and for him to organize the next community event, the holiday party. I find this to be a reasonable strategy to deal with the conflict between the two tenant representatives, based on the evidence before me. I cannot conclude that the applicant’s opportunities to carry out his responsibilities as a tenant representative at West Acres were somehow marginalized or that he was excluded from playing a substantial role by Toronto Community Housing because of what may have happened at one community event, the summer barbecue. The fact that it was known by at least Mr. Corrado that the applicant was on disability benefits is not persuasive evidence that the treatment he received specifically in relation to the summer barbecue is linked to his disability. Similarly, no evidence was presented in regards to how the applicant’s race or ethnic origin factored into the events surrounding the summer barbecue or the tensions between the applicant and Ms. G..

Incident with C.B.

29The applicant described an incident with a fellow tenant, C.B. on August 16, 2007. According to the applicant Mr. B. approached him and threatened him with a brick and made comments about persons from India suggesting that they don’t know how to behave, that they don’t know how to speak English. The applicant produced an August 17, 2007 letter to Mr. Thomas complaining about the incident. The applicant testified that Mr. Thomas took no action in response and the applicant suggested that this was because of nepotism and favouritism given that Mr. Thomas and Mr. B. are both from the same community- both being persons of Caribbean descent. The applicant testified that he made a complaint to Toronto Community Housing’s head office and a person was sent to speak to him who then, in turn, spoke to Mr. Marshall. The applicant maintained that Mr. B. was not punished and that he, the applicant, is now in a vulnerable position because of Mr. B.’s threatening actions and the fact that the Toronto Community Housing took no action in response. The applicant also testified that Mr. B. has now been appointed a tenant representative.

30The applicant specifically stated that Mr. B. did not apologise to him and, moreover, an apology would not have been sufficient as it would not have protected him from Mr. B. in the future.

31Mr. Marshall testified that Mr. Thomas asked him to respond to the applicant’s letter of August 17, 2007 in which the applicant expressed his concerns about Mr. B.’s conduct. Mr. Marshall testified that he interviewed both Mr. B. and the Toronto Community Housing staff person who witnessed the incident in question and that Mr. Marshall concluded that Mr. B. had instigated the matter and had verbally abused the applicant although Mr. Marshall could not conclude what had been said by Mr. B. to the applicant. Mr. Marshall’s written report, dated August 21, 2007, outlines his investigation and its findings, and indicates that he told Mr. B. was told of Toronto Community Housing’s Human Rights, Discrimination, Fair Access and Harassment Policy and that Mr. B.’s actions constituted a step 1 offence under this policy. The report also states that Mr. B. was warned that any further transgression could result in harassment charges being filed against him under the policy. Mr. Marshall then records that the applicant indicated that he was not satisfied with the actions taken and felt that Mr. B. should be removed from the community.

32Mr. Thomas’s brief testimony of this incident and the applicant’s reaction was consistent with Mr. Marshall’s account. He did refer to the follow up meeting that was held with the applicant on August 29, 2009. In an undated letter from Mr. Thomas to the applicant summarizing the meeting of August 29, Mr. Thomas states that the purpose of the meeting was to deal with the applicant’s dissatisfaction with the Toronto Community Housing’s response to the applicant’s complaint about Mr. B. Later in his letter Mr. Thomas notes:

When asked about your issues and concerns about Mr. B. you stated that that issue was closed because Mr. B. offered you an apology and furthermore you understood the reasons for his actions towards you since you’ve known each other before you were tenants at TCH.

33Mr. Thomas also testified that it was his understanding that Mr. B. had subsequently been acclaimed a tenant representative.

34I find that the evidence is that the Toronto Community Housing did respond to the applicant’s August 17, 2007 letter of complaint by investigating his allegations and did so in a timely way - Mr. Marshall’s written report is dated August 21. The respondent took action to deal with Mr. B.’s behaviour under its human rights and harassment policy. When the applicant expressed dissatisfaction with the sanction and further warning the Toronto Community Housing issued to Mr. B., Toronto Community Housing followed up by meeting with the applicant. At this meeting the applicant expressed his satisfaction that the matter was closed given Mr. B. had apologised to him.

35I find that the applicant’s allegation that Toronto Community Housing took no action in response to the incident with Mr. B. and that the applicant continued to be vulnerable to be deliberately misleading. I am satisfied that Toronto Community Housing did respond by means of an investigation and a follow up meeting and that the applicant himself expressed satisfaction at the follow up meeting that the matter was closed based on an apology from Mr. B.. I find the applicant’s claim that staff of the THC favoured Mr. B. or acted in a nepotistic way because he was of Caribbean origin to be unfounded. I further find that when the applicant testified that Mr. B. was “appointed” a tenant representative he was attempting to insinuate that this was inappropriate action by the Toronto Community Housing in light of Mr. B.’s past action. However, I prefer Mr. Thomas’s evidence on this point which was that Mr. B. was acclaimed into the position of tenant representative and therefore had not been placed into the position by Toronto Community Housing.

36In summary, the applicant’s description of what occurred with Mr. B. and the characterization of Toronto Community Housing’s response was not credible and, as suggested, was, in my opinion, deliberately misleading as to suggest that his understandable concerns about a racial incident had been ignored. I am satisfied that Toronto Community Housing did respond in a timely way, did treat his concerns seriously and that the matter was resolved to the applicant’s satisfaction.

Asian and South Asian Heritage Month event

37Asian and South Asian Heritage month is celebrated in May and Toronto Community Housing mandates each of its CHU districts to hold an event to mark the occasion. To assist local community planning for May 2008 Toronto Community Housing issued a “Celebrating Asian and South Asian Heritage Toolkit” (the “Toolkit”) which included the organization’s objectives for planned events, strategies for building partnerships with community groups and a list of potential entertainers.

38Mr. Thomas testified that he delegated the job of organizing an event for CHU-1 to Mr. Marshall, in part because he, himself, was on Toronto Community Housing’s overall steering committee. The event was given a $500 budget. Mr. Thomas stated that CHU districts can decide the type of event they will hold but the event is expected to be meaningful to tenants and staff, to acknowledge Asian and South Asian communities and to address anti-racism. Mr. Thomas testified that he had spoken to Mr. Qaadri, a local Member of the Provincial Parliament (MPP) about being the keynote speaker and had stressed to Mr. Marshall the importance of confirming Mr. Qaadri’s involvement and role as keynote speaker.

39The applicant testified that he volunteered at a CHU-1 Council meeting to assist Mr. Marshall in organizing an event to celebrate Asian and South Asian Heritage Month. Mr. Marshall testified that he was happy the applicant volunteered as he had told the applicant he would try to involve him more as a tenant representative and because the applicant was of South Asian descent. It appears the CHU-1 Council decided that the event should take place on May 28, 2008.

40A key issue at the hearing was what were Mr. Marshall and the applicant’s respective roles in planning the event. According to the applicant, Mr. Marshall was responsible for the finances, the booking of the hall and the food. The applicant testified that everything else was his responsibility including arranging for the artists, inviting guests, arranging for publicity and decorating the hall.

41The applicant testified that Mr. Marshall gave him the list of 21 performers provided in the Toolkit to contact and book. The applicant testified that he contacted all the listed performers. While some were not available others were and accepted. The applicant testified that he also contacted artists in the Asian and South Asian community he knew. He testified that between 10-15 artists had agreed to perform. The applicant also testified that he invited a number of guests including area politicians. He produced copies of letters from the applicant to local municipal councillors, Dr. Qaadri and the local Member of Parliament.

42The applicant testified that he had difficulty contacting Mr. Marshall to discuss his organizing efforts and the overall planning for the event. He stated that Mr. Marshall did not respond to his e-mails and telephone calls and that he finally had to visit Mr. Marshall at his office on May 23. This visit is a particularly contentious issue in this case.

43Mr. Marshall’s account is quite different. He testified that he had a meeting with a planning committee he had struck for the event, which consisted of himself, the applicant, the other CHU-1 HPO and another Toronto Community Housing staff person, to discuss what the nature of the event might be. He testified that he announced he would take care of booking a venue, ordering the food and inviting guest speakers. He asked the applicant if he knew of any performers and also provided him with the list of performers in the Toolkit. He asked the applicant to determine the availability of performers and to let him know the likely cost as he only had a $500 budget. Mr. Marshall testified that the applicant was excited about his assignment and asked what his title would be. Mr. Marshall believed this planning meeting took place in late April, perhaps early May.

44Mr. Marshall testified that the applicant would subsequently turn up at his office unannounced wanting to talk about the event but that he did not come with any identified entertainers. Mr. Marshall described the applicant as enthusiastic and persistent in wanting to meet but that Mr. Marshall found this annoying given that his interest was in having the names of performers he could contact and the applicant was not providing this information.

45Mr. Marshall talked to the applicant at his office. Mr. Marshall stated he kept asking the applicant to just find some available entertainers. He had a sense the applicant was not pleased with this response and wanted more involvement but Mr. Marshall had no intention of turning over more responsibility. Mr. Marshall testified that he ended up telling the applicant not to come by his office unannounced but rather to send him an e-mail if he had names of potential performers to share.

46I find the applicant’s account of his role and responsibilities in planning for the event in question to not be credible. The applicant testified that he had successfully identified 10-15 different performers who were willing to take part in the event. However, when questioned as to which performers on the list from the Toolkit had agreed to perform the applicant ended up stating he could not recall any performer on the list that had agreed to perform. I believe the applicant was grossly exaggerating the number or performers he may have made arrangements with. The applicant was attempting, in my opinion, to suggest that he had handled the responsibility for contacting (and booking) potential performers effectively. He also suggested that only one performer charged a fee which I find not to be credible given Mr. Marshall’s testimony that he generally expected the performers to be charging fees and the information contained in the Toolkit which states “Most individuals listed are professionals with established fees”.

47There is also the fact that the applicant testified that Mr. Marshall repeatedly failed to return his telephone calls and e-mails and did not appear to want to meet with him. This would appear odd given that they were planning an imminent event. However, it makes more sense in the context of Mr. Marshall’s testimony, that he had had asked the applicant to carry out a task, to identify possible performers, and the applicant had not, as yet, done so.

48I also did not find it credible that the inviting of local politicians would be left to the applicant. The letters of invitation, signed by the applicant, are without letterhead and do not make coherent sense. Such invitations, I believe, would be formally sent out by Toronto Community Housing, or at least, by the planning committee. It is relevant to note here that Mr. Marshall testified that he had not seen the letters the applicant wrote to invite various politicians to the event until the hearing.

49Significantly, one of the letters of invitations sent by the applicant was to Dr. Qaadri. This letter does not refer to Dr. Qaadri’s role as the keynote speaker. I found Mr. Thomas and Mr. Marshall were credible in stating that Dr. Qaadri was to be the keynote speaker and I can only conclude that the applicant’s issuing of invitations to Dr. Qaadri and others was beyond his determined role.

50I prefer Mr. Marshall’s account that the applicant’s role was to identify possible performers and to provide this information to Mr. Marshall for follow up. I found Mr. Thomas and Mr. Marshall’s testimony that Mr. Qaadri had been identified by them as the likely keynote speaker and that Mr. Thomas had instructed Mr. Marshall to confirm this to be credible. I simply do not believe the inviting of guests was left to the applicant.

51And the significance of these findings? First, I believe the applicant was not being truthful when he testified that he had successfully arranged for 10-15 groups to perform and this willingness to fabricate such an account before me does not help his overall credibility. Second, I believe that Mr. Marshall, as Toronto Community Housing staff, was clearly accountable for organizing this event and it was not unreasonable that he kept responsibility for certain tasks, including ensuring that the event took place within budget. Making sure the event took place within budget would require him (or perhaps the planning committee) to make decisions on who would perform. Giving a small specific task to the applicant, who after all was a volunteer tenant representative, was not unreasonable in the circumstances and I cannot accept the contention that the applicant was inappropriately treated as a subordinate and that the failure to give the applicant greater responsibilities excluded him in a manner that was somehow discriminatory.

May 23, 2008 Incident

52The applicant came to the CHU-1 offices on May 23, 2008 to meet with Mr. Marshall. The applicant testified that he had been repeatedly trying to contact Mr. Marshall by e-mail and telephone but that Mr. Marshall was not responding. He testified that while he did not have a scheduled meeting with Mr. Marshall he was keen to meet as the event they were planning was due to take place in 5 days and he was not clear as to what was happening.

53The CHU-1 offices consist of a waiting room and staff offices which are accessed from the waiting room through a controlled access door. Most offices are open cubicles. There is also a boardroom.

54The following facts were not in dispute. The applicant came to the CHU-1 office and told Taema Sathesskumar, the tenant service representative on duty, that he would like to see Mr. Marshall. The applicant did not have an appointment to see Mr. Marshall. Ms. Sathesskumar told him that Mr. Marshall was on the telephone and that he had to wait until Mr. Marshall was available. The applicant waited for some time in the waiting room but that when Ms. Sathesskumar was escorting two other tenants from the waiting room through the controlled access door into the CHU offices, the applicant followed and gained entry into the office area. Ms. Sathesskumar then asked the applicant to wait in the boardroom given there was no indication that Mr. Marshall was available. She told Mr. Marshall that the applicant was in the boardroom and she also informed Abdul Warsame, the office manager, of the applicant’s presence in the boardroom. Mr. Marshall then became available and was meeting with the applicant in his office when Mr. Warsame came in and spoke to the applicant about the fact that he had entered the CHU-1 offices in the manner that he had. Mr. Warsame then left and told Mr. Thomas what had occurred. Mr. Thomas came into Mr. Marshall’s office and told the applicant that he was to leave and he escorted the applicant from Mr. Marshall’s office to the door of the waiting room.

55What is primarily in dispute was the appropriateness of how the applicant came into the office, whether there was any raised voices or yelling by the applicant, Mr. Warsame or Mr. Thomas, and whether Mr. Thomas used any physical force to remove the applicant from the office.

56The applicant testified that he was keen to meet with Mr. Marshall on May 23 because of his concerns about the Asian and South Asian Heritage event being planned for May 28. The applicant stated he had to wait in the waiting room for a long time and was very anxious. He stated he was concerned that because of his disability - his epilepsy - he might have a seizure. He stated that under the circumstances - his position as a tenant representative and the fact that he felt he could possibly have a seizure - it was reasonable for him to follow Ms. Sathesskumar into the offices. He stated his intentions were to wait in the CHU-1 office boardroom, a place he was familiar with from CHU-1 council meetings.

57He testified that he waited over 30 minutes before Mr. Marshall came to get him. While meeting with Mr. Marshall in his office Mr. Warsame came in yelling about the applicant being there and how the applicant got in to the CHU-1 offices. The applicant testified that Mr. Thomas then came in and also yelled at the applicant about what he was doing there. Mr. Thomas then asked the applicant why he yelled at Mr. Warsame. The applicant testified that he told Mr. Thomas that he had not been yelling and that it had been Mr. Warsame who had yelled at him. The applicant testified that Mr. Thomas then told the applicant that he did not know how to behave, that he had to leave and that if he did not leave Mr. Thomas would call security. The applicant testified that Mr. Thomas proceeded to grab the applicant by the hands and pulled him out of his chair. Mr. Thomas then pushed the applicant out of Mr. Marshall’s office using two hands, marched him down the hall and pushed him out of the office door into the waiting room, telling him not to come back. The applicant testified that he was distressed by this treatment.

58Ms. Sathesskumar testified that she told the applicant three times that Mr. Marshall was on the telephone and unavailable. She testified that the applicant was agitated. She testified that he followed her and two tenants into the office area without permission and that she ended putting him in the boardroom not knowing of any alternative. She noted that the boardroom was full of sensitive tenant files.

59Mr. Warsame and Mr. Marshall testified that the applicant yelled at Mr. Warsame about whether Mr. Warsame was a security guard while telling Mr. Warsame to go back to his seat. Mr. Thomas testified that when he came into Mr. Marshall’s office he told the applicant that he was tired of the applicant abusing his staff and asked him to leave. Both Mr. Warsame and Mr. Thomas testified that the applicant yelled at Mr. Thomas. Mr. Thomas stated that he took the applicant’s jacket from his lap and then took the applicant by his shoulder and guided him. He denied that he grabbed the applicant’s hands and pulled him out of the chair. Mr. Marshall testified that he thought that Mr. Thomas took the applicant by the elbow. Mr. Thomas stated he walked the applicant down the hall with one hand gently on his back and that at the door he guided the applicant out, again using one hand.

60The CCTV tape of the incident was reviewed at the hearing. The images were taken from a fixed camera pointed at the door into the CHU-1 offices. There is no audio so the tape is not helpful in resolving the issue of who might have yelled. It also does not show what took place in Mr. Marshall’s office. It does show the applicant entering the offices and Mr. Thomas escorting him out.

61Having considered the evidence of this event carefully I do not accept the applicant’s version of events and prefer the respondent’s witnesses’ accounts and the CCTV images which, I find, support the respondent’s position. I am of the opinion that the applicant does inappropriately and without permission enter the CHU-1 offices by following Ms. Sathesskumar and two tenants. The applicant’s claim that Ms. Sathesskumar invited him in by means of a hand gesture familiar to South Asians is not credible. I prefer Ms. Sathesskumar’s testimony about having told the applicant he had to wait for Mr. Marshall in the waiting room and that she did not invite him into the office area given that Mr. Marshall was still busy and the boardroom was not a suitable waiting area as it contained sensitive tenant files. It is significant to me that Ms. Sathesskumar later reported her concerns about how the applicant came into the office to Mr. Warsame, an action that does not seem consistent with the applicant’s claim that she chose to let him into the office area. I find that the CCTV images indicate that the applicant does take advantage of the door being open for two other tenants to enter the offices. The CCTV images are consistent with Ms. Sathesskumar’s testimony on this point. I also do not find that the CCTV images indicate Ms. Sathesskumar used a welcoming hand signal to invite the applicant in as suggested by the applicant.

62The applicant’s contention that he was used to being in the boardroom does not give him the right to enter the offices as he did. The applicant’s claim that he was anxious and felt he might have a seizure does not, in my opinion, justify his actions. Leaving aside the fact that the applicant’s claim that he might have had a seizure was an unsubstantiated claim (I heard no evidence about his susceptibility to seizures) it is not clear to me why his condition preventing him from waiting, as instructed, in the waiting room. The applicant’s contention that there was no room in the waiting room is belied by the CCTV images showing available space.

63I do not accept the applicant’s claims that he was yelled at by Mr. Warsame or Mr. Thomas or that Mr. Thomas physically assaulted him. The respondent’s witnesses were consistent in their evidence (and their written statements from May 2008) that it was the applicant who was yelling. I do note that Ms. Sathesskumar did testify that she did not hear the applicant yell despite her office being close to Mr. Marshall’s but I accept the evidence that she may have been away from her desk. Importantly, for me in assessing the overall credibility of the applicant’s claim as to what happened on May 23 is that the CCTV images do not show that Mr. Thomas physically forced the applicant out the office door as the applicant claimed. The images suggest that Mr. Thomas was guiding the applicant out, as Mr. Thomas maintained. This undermines the applicant’s related claim that Mr. Thomas had forced him out of his chair and had pushed him out of Mr. Marshall’s office with two hands.

64I also need to state that the general reliability and credibility of the applicant’s evidence before me did not help his case when I assessed his assertions as to what happened on May 23. As noted, I did not find the applicant was reliable or credible when describing his understanding of the role of secretary on the CHU-1 Council, when he described the outcomes of the incident with Mr. B. and when he described his role and accomplishments in relation to planning for the May 28 event.

Fallout from the May 23 Incident

The complaint

65The applicant went to the police on May 24 to complain about how he as treated at the CHU-1 offices on May 23. He testified that he was told by the police that if there had been any physical contact by Mr. Thomas this could constitute assault.

66A police officer subsequently interviewed Mr. Thomas. Mr. Thomas told the police the respondent’s version of events and showed the CCTV tape to the police officer. Mr. Thomas testified that the police officer told him that there had been no assault.

67The applicant also contacted his municipal councillor, Rob Ford, to complain about what occurred on May 23. It appears Mr. Ford forwarded this complaint to Steve Flora, the Director of Toronto Community Housing. The applicant also wrote to Mr. Flora on June 2, 2008 detailing his complaint about what occurred on May 23. The applicant testified that he subsequently attended a meeting at Councillor Ford’s office at which Mr. Flora was present. The applicant testified that Mr. Flora played the CCTV tape. On June 10, 2008 Mr. Flora wrote to Councillor Ford to state that he had investigated the applicant’s complaint and had reviewed the CCTV tape and concluded that his investigation and the CCTV tape failed to support the applicant’s version of events on May 23. Mr. Flora stated that consequently the applicant’s complaint was unsubstantiated and that Toronto Community Housing would take no further action. There was no evidence that Councillor Ford took further action.

The postponement and cancellation

68Mr. Thomas testified that the May 28 event was postponed on either May 26 or 27 because the participation of performers and status of the keynote speaker was not clear and that there was a concern about what the applicant might do if the event proceeded given the events surrounding the May 23 incident in the CHU-1 offices. The event was subsequently cancelled, it appears sometime in June.

69The applicant contended that the respondent provided a number of conflicting reasons for why the event was postponed and then cancelled. The applicant noted a number of inconsistencies in the respondent’s documents and the oral testimony of the respondent’s witnesses. It was noted, for example, that the respondent had initially cited a problem with booking a venue as the reason the event was postponed. The applicant questioned the respondent’s level of commitment to the celebration of Asian and South Asian culture given its actions or inactions in relation to the May 28 event.

70I agree that inconsistent reasons for the postponement and eventual cancellation of the May 28 event were provided. I also agree it appears the respondent was not suitably organized to carry out the event on May 28 given the state of planning just days before it was to take place. However, I do not conclude that these facts establish an organizational indifference to celebrating Asian and South Asian Heritage month. The respondent had celebrated Asian and South Asian Heritage month in the past and there was strong evidence of an organizational interest in celebrating it again in 2008. Furthermore, even if the decision to postpone and later cancel the event was motivated in some measure by concern about the applicant’s actions if the event proceeded, I am satisfied this decision related to the applicant’s past inappropriate behaviour, not his race, place of origin or disability.

The Investigation

71Mr. Thomas testified that the applicant’s conduct a the CHU-1 offices on May 23 was not appropriate for a tenant representative and that, as a consequence, he asked Toronto Community Housing’s Human Rights and Equity Unit to investigate.

72Ray Tsukada, a human rights consultant for Toronto Community Housing’s Human Rights and Equity Unit conducted the investigation.

73Mr. Tsukada testified that he met with Mr. Marshall, Ms. Sathesskumar and Mr. Warsame at which time he reviewed their written statements regarding the May 23 incident. These three witnesses indicated that they had nothing to add to these statements. Mr. Tsukada also interviewed Mr. Thomas. He testified that ultimately he relied on 1) the information he obtained from Mr. Thomas; 2) the statements of Mr. Thomas’ three staff; 3) the applicants account of what occurred on May 23 as expressed in the applicant’s June 5 letter of complaint to Steve Flora; 4) the information he had about the CCTV tape (including Steve Flora’s June 10 letter to Councillor Ford) and 5) a further interview he had with Mr. Marshall at which time Mr. Marshall described the applicant’s conduct at CHU-1 Council meetings.

74Mr. Tsukada testified that he concluded that the applicant had violated the Toronto Community Housing’s Code of Conduct for tenants which states that tenant representatives:

Must not exert or attempt to exert undue or inappropriate influence on tenants or staff or behave in a manner that may reasonably be perceived as intimidating or threatening.

75Mr. Tsukada testified that he found that the applicant’s behaviour on May 23 was threatening and intimidating and that the applicant had also acted in intimidating and threatening manner at CHU-1 Council meetings.

76Mr. Tsukada testified that the consequences of the applicant having violated the Code of Conduct were that the applicant could be warned about his behaviour and the need to correct it or he could be removed from his position as a tenant representative. Mr. Tsukada testified that this was Mr. Thomas’s decision to make.

77Mr. Tsukada testified that he and Mr. Marshall went to visit the applicant on June 12 to tell the applicant that Mr. Thomas had decided to remove him as the elected tenant representative for West Acres.

78Mr. Tsukada was asked why his investigation had not followed the Toronto Community Housing Written Guide to CHU councils which describes the process by which a tenant representative can be removed from office. The guide, which was before me, states that a tenant representative will be contacted by the community housing manager to explain the concern about the tenant representative’s conduct and that the specific issues related to this conduct will be identified and a plan will be created to solve these issues. Mr. Tsukada stated that he believed this guide, like many documents produced in relation to tenant participation in Toronto Community Housing, was outdated and no longer in force. He also stated that he believed the he did not need to interview the applicant as the applicant’s June 5 letter of complaint to Mr. Flora contained a fulsome account of what the applicant believed happened on May 23.

79I have some concerns with the Toronto Community Housing process that led to the applicant’s removal as a tenant representative. The applicant was not interviewed and given an opportunity to provide more information as to what he believed occurred on May 23. Relying only on the applicant’s letter of June 5 seems odd particularly when three Toronto Community Housing staff members were given an opportunity to augment their written statements by means of an interview. Moreover, it appears that the applicant’s behaviour at CHU-1 council meetings was a factor that gave rise to Mr. Tsukada’s determination that the applicant had violated the Code of Conduct and the applicant was clearly not given an opportunity to respond to this concern.

80However, this being said I do not find that the decision to remove the applicant is related to his being South Asian or having a disability. In my opinion it is based on his specific conduct on May 23 and the respondent’s conclusion that the applicant’s behaviour was inappropriate as was the applicant’s decision to go to the police to claim that Mr. Thomas had assaulted him. I also believe that the applicant’s past behaviour did factor into both Mr. Tsukada’s assessment of the applicant and more importantly, Mr. Thomas’s decision to remove the applicant as a tenant representative. Mr. Thomas testified that he had, over time, worked with the applicant to try to help him carry out his function as tenant representative but that the applicant was never satisfied and had continued to unduly complain about Toronto Community Housing. I believe that the May 23 incident was, in many ways, the final straw for Mr. Thomas in regard to the applicant’s behaviour. However, as stated, I have not been persuaded that the applicant’s race or place of origin or his stated disability factored in any way into the treatment he received from Toronto Community Housing. I believe it is the applicant’s own inappropriate behaviour that led to his conflict with Toronto Community Housing.

81For these reasons the applicant’s Application is dismissed.

82Given my decision I have not outlined the applicant’s request for remedy and its supporting rationale.

83An issue identified at the outset of this case was whether the applicant was alleging discrimination in employment under section 5 of the Code, or alleging discrimination in relation to the provision of services under section 1 of the Code. Did the applicant, as an elected tenant representative, have, in a broad sense, an employee-employer relationship with the respondent or was he a recipient of a service from the respondent?

I am of the opinion that it is not necessary for me to make a finding on this issue. The parties did not dispute that the applicant’s allegations of discrimination were covered by the Code, the issue was strictly which section of the Code applied. However, my conclusion is that my analysis and my findings would not differ if this was a case I considered under section 1 or section 5 of the Code - or possibly both. I recognize the parties provided submissions and case law on what sections of the Code should be applied and while I have not made a ruling on this issue I do thank the parties for their thoughtful submissions.