Edward Robdrup v. J. Werner Property Management Inc., 2009 HRTO 1372

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward Robdrup

Applicant

-and-

J. Werner Property Management Inc.

Respondent

DECISION

Adjudicator: Ena Chadha

Date: September 1, 2009

Citation: 2009 HRTO 1372

Indexed as: Robdrup v. J. Werner Property Management

APPEARANCES

Edward Robdrup, Applicant ) On his own behalf

J. Werner Property Management Inc., ) Peter Schroeder, Representative

Respondent )

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on November 12, 2008 alleging discrimination in housing on the ground of disability.

2The applicant, who is 80% Deaf, has a dog named Scooter. The applicant relies upon Scooter to alert him when someone is at the door or if the telephone rings. The applicant asserts that Scooter is a service dog. The applicant alleges that the respondent, J. Werner Property Management Inc., discriminated against him on the basis of his disability when the respondent cited Scooter’s barking, amongst other behaviours, as grounds to initiate the early termination of the applicant’s tenancy.

3The respondent filed a Response on January 19, 2009 denying the allegation of disability discrimination. The respondent takes the position that Scooter is a family pet and not a proper service dog. The respondent alleges that it had legitimate, non-discriminatory grounds to commence the process of terminating the applicant’s tenancy.

PRELIMINARY ISSUE

4In his Application form, the applicant also selected the grounds of “age” and “receipt of public of public assistance” and the area of “good, services and facilities”, however these alleged bases of discrimination were not advanced in the hearing. The hearing proceeded on the ground of disability in the area of housing only.

WITNESSES

5The hearing into this matter was held on July 9, 2009. In addition to his own testimony, the applicant called the evidence of his roommate, Deborah LePage. The respondent called the evidence of one witness: Julie Werner, the president of the respondent company. The parties were given the opportunity to file additional documents and final submissions regarding the additional materials were heard via teleconference on July 20, 2009.

SUMMARY OF THE EVIDENCE

6The respondent is a property management company which oversees the operation and maintenance of an apartment building in Waterloo, Ontario. The apartment complex is a three story building consisting of twelve units. The respondent company serves as a liaison between the out of country building owner and the building tenants. The building allows tenants to keep pets and dogs have lived there in the past.

7The applicant and Ms. LePage became tenants of the building in November 2007. The applicant testified that, when he first applied to rent the apartment, he advised the building’s Assistant Superintendent that he had hearing loss and that his dog assisted him in this regard. The applicant testified that, when the Assistant Superintendent later telephoned him to advise that the tenancy application had been accepted, the Assistant Superintendent also confirmed that there were no concerns with respect to the dog living in the building. The applicant and Ms. LePage moved into Unit 11, which was located on the third level.

8The applicant testified that as a result of his hearing loss he uses hearing aids and has an “AlertMaster Wireless Notification System” installed in his residence. This device is connected to his telephone and a door bell apparatus outside his door. If the telephone rings or the special door bell is activated, the device flashes a light to signal that there is a caller or someone at the door. Scooter is trained to jump on the applicant’s lap and bark loudly to alert him that the light is flashing. The applicant testified, and the documentary evidence supports, that while he lived in the respondent’s building there was sign posted outside of his apartment door which stated

AN OCCUPANT OF THIS APARTMENT

IS HEARING IMPAIRED

SO PLEASE

RING THE BELL BESIDE THE DOOR

IF THERE IS NO RESPONSE PLEASE KNOCK LOUDLY!!!!!!!!

THANK YOU,

TED & DEB

9The applicant acquired Scooter at five months of age and Scooter was approximately two years old at the time of the events in dispute. The applicant testified that Scooter had received some obedience training by then and that both he and Scooter had been taught by a professional trainer to work together so that Scooter could help him with his hearing needs. The applicant acknowledges that Scooter is not licensed or certified as a service dog. However, the applicant believes that Scooter performs the duties of a service dog and eventually will be fully trained to be qualified as a service dog. The applicant testified that Scooter alerts him if someone is coming up behind him and once even pulled him out of the path of an on-coming car.

10The applicant testified that most people do not realize that Scooter is a service dog because of his small size. Scooter is a Chinese crested Jack Russell. The applicant further testified that Scooter is a friendly dog and likes to approach people. He acknowledged that, on occasion, Scooter may have come across as overly friendly. The applicant emphasized that, until he received notice of the respondent’s intent to terminate the tenancy, he believed that he, Ms. LePage and Scooter were all well-liked by the other tenants.

11In July 2008, the applicant was served with a Notice to Terminate Tenancy Early (“Notice”), which had been filed with the Landlord and Tenant Board alleging that disturbances caused by the occupants of Unit 11, including Scooter, were negatively impacting the reasonable enjoyment of the property by the other tenants. The Notice listed approximately 21 examples of alleged disturbances and about half of the complaints related to Scooter’s loud barking, running loose in the hallways and jumping on people. The remainder were complaints about Ms. LePage’s conduct and comments, as well as excessive noises and banging coming out of Unit 11. The applicant alleges that he was never informed about any of the concerns regarding Scooter until he received the formal legal notification from the respondent seeking to terminate his tenancy.

12The applicant contends that the respondent discriminated against him when it initiated the process to terminate his tenancy on an early basis because of Scooter’s barking. The applicant argues that, when he is barking, Scooter is only doing the job that he was trained to do. The applicant alleges that it was unfair and offensive of the respondent to cite Scooter’s barking as a ground to terminate his tenancy and that this constitutes discrimination against him because of disability.

13The respondent alleges that, within a few months of the applicant’s and Ms. LePage’s tenancy, other tenants of the building began to express concerns to the Superintendent and the respondent about the tenants in Unit 11. There were two general topics of complaint: 1) Ms. LePage’s behaviour and interactions with neighbours and 2) Scooter’s loud barking and running loose in the hallways. The respondent contends that the complaints became so numerous that it had no choice but to issue the Notice in order to protect the interests of the other tenants of the building. The respondent points out that the Notice does not automatically trigger eviction, but rather is a warning document which allows the tenant seven calendar days to stop the activities listed in the Notice as disturbances or else a full application to evict would be filed.

14Ms. Werner testified, and the documentary evidence confirms, that there were several complaints about Ms. LePage’s angry outbursts towards other tenants and contractors, including her alleged use of an air horn from her balcony in the middle of the night on two separate occasions against noisy students in an adjacent property. Other complaints regarding Ms. LePage’s alleged behaviour included concerns about her shovelling snow and ice off the balcony onto people and premises below and her frequent calls to by-law parking enforcement to ticket cars that she believed were improperly parked around the apartment complex. In regards to the concerns related to Scooter, Ms. Werner testified, and the documentary evidence confirms, that there were numerous complaints that Scooter barked excessively and that both the applicant and Ms. LePage frequently allowed Scooter to run loose in the hallways, which often resulted in Scooter jumping on people.

15Ms. Werner testified that it was difficult to communicate with Ms. LePage because Ms. LePage would rudely hang up the phone when Ms. Werner called to discuss the problems. Ms. Werner testified that given these difficulties she once wrote to Ms. LePage to request that Ms. LePage stop calling the parking enforcement officials and allow management to monitor parking issues. Ms. Werner acknowledged that during one telephone call, approximately three to four months after the commencement of the applicant’s tenancy, Ms. LePage advised Ms. Werner that Scooter was a service dog. Ms. Werner testified that she did not believe Ms. LePage because of the numerous complaints she had received about the dog’s behaviour, including barking loudly, which she perceived were not consistent with the behaviour of a proper service dog.

16Ms. LePage similarly recalled the telephone conversation with Ms. Werner. She testified that about two or three months after they moved in, Ms. Werner called and spoke to her about an incident in the parking lot. During this conversation, Ms. Werner noted that there had been complaints about Scooter and in response Ms. LePage advised her that Scooter was a service dog for the applicant because of his hearing impairment. Ms. LePage testified that Ms. Werner replied that she was simply letting Ms. LePage know what other people were telling her and advised her to try to avoid any more problems.

17Ms. LePage pointed out that there could be no doubt that the Superintendent was aware of the applicant’s disability and his need for Scooter because the Superintendent lived across the hall from them and would have regularly passed the door sign advising people to use the special door bell. Ms. LePage testified that she personally had informed the Superintendent that Scooter was a service dog. Ms. LePage testified that other tenants were also aware of the fact that Scooter was a service dog. She stated that when she took Scooter for walks, if someone appeared apprehensive of Scooter, she would tell them not to worry because Scooter was a service dog.

18Ms. LePage indicated that Scooter had not yet been trained as a service dog, but that the applicant and Scooter would be undergoing joint training when Scooter was a bit older. Ms. LePage denied that Scooter was permitted to run freely in the hallways. She acknowledged that Scooter may, on occasion, have been unleashed and walking beside her if she needed to carry laundry down the three flights of stairs. Ms. LePage refused to answer questions regarding her alleged outbursts and confrontational interactions, as well as the air horn incidents. In refusing to answer questions on any such topics, Ms. LePage was emphatic that the Human Rights Tribunal and the Landlord and Tenant Board were separate processes and as such, she should not be forced to address any of the issues regarding the propriety of her conduct as a tenant.

19All witnesses testified about a letter authored by Ms. LePage and signed by the applicant subsequent to receipt of the landlord’s Notice of early termination of tenancy. Based on their belief that one particular tenant, an elderly man, was the main complainant behind the termination notice, Ms. LePage wrote a semi-anonymous letter to that individual. The letter stated that the man should have “kept his mouth closed then things would be better here”. The letter concludes that “[s]o it is a sad day when you have to pick on a dog and a disabled person because you are a looser (sic)…”. The applicant testified that he agreed with the sentiments expressed in the letter by Ms. LePage. The applicant testified that, because he believed the man was “picking on a poor defenceless animal”, he decided to sign the letter “Love Scooter”. Ms. Werner testified that upon receipt of this letter, the elderly tenant expressed a serious intention to move out of the building because he was so scared and intimidated that Ms. LePage may further retaliate.

20The applicant and Ms. LePage testified that they both were angry and upset by all the allegations in the Notice that they felt there was no chance to resolve the concerns, so they voluntarily submitted their notice to terminate the tenancy and moved out at the end of August 2008. The applicant provided a letter from the Canadian Hearing Society (“CHS”) dated October 28, 2008 stating essentially that the applicant is a client of the CHS. The letter further notes that the CHS counsellor was advised by the applicant that he “…is currently exploring whether he can license his family dog to become a working hearing service dog.”

ANALYSIS AND FINDINGS

Did the Applicant have a “disability” within the meaning of the Code?

21Subsection 2(1) of the Code provides that the right to equal treatment with respect to occupancy of accommodation without discrimination because of “disability”. “Disability” is defined in section 10.1 of the Code, in part, to include “deafness or hearing impediment” and “physical reliance on a ... remedial appliance or device”.

22The evidence clearly establishes that, as a person who lives with a significant degree of hearing loss and uses hearing aids, the applicant has a “disability” within the meaning of the Code.

Was the Applicant subjected to discrimination because of disability?

23In order to succeed, the applicant must establish, on a balance of probabilities, that he was subjected to adverse treatment, and that that treatment was related, in whole or in part, to his disability.

24I understand the applicant’s position to be that the respondent discriminated against him on the basis of disability when the respondent sought to terminate his tenancy, in part, because of alleged disturbances caused by Scooter’s barking. The applicant appears to be arguing that the respondent failed to recognize and accept certain behaviours by Scooter, namely the loud barking, which the applicant claims are a manifestation of the disability-related assistance that the dog provides to him.

25I understand the respondent’s position that Scooter is neither trained nor certified as a service dog and appears to be a pet primarily for companionship. However, having considered all the testimony and the documentary materials filed, while the evidence does not support the finding that Scooter is an official service dog, the evidence does establish that Scooter is a personal support animal, in that he supports the applicant with respect to some of his disability-related needs. The applicant clearly relies upon Scooter to alert him when the telephone or door bell rings and if someone or something is coming up behind him.

26In my opinion, when a respondent knows, or reasonably ought to know, that the applicant has disability-related needs, the respondent has a duty to inquire into the situation before making any adverse decision that may implicate the applicant’s disability-related needs and adversely affect the applicant’s status. In the present case, if the respondent had made such inquiries, the respondent would have learned more about the relationship between Scooter’s barking and the applicant’s disability and may not have characterized the barking as a disturbance, nor relied on it as a basis for seeking early tenancy termination.

27The evidence establishes that the respondent, through Ms. Werner and both building superintendents, was aware that Scooter provided assistance to the applicant in relation to the applicant’s hearing disability. Ms. Werner acknowledged that, within three months of the tenancy, Ms. LePage advised her that Scooter was a service dog for the applicant. As such, the respondent was alerted to the fact that the applicant had disability-related needs and that Scooter played a role in assisting with those needs.

28When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs to determine whether or not a duty to accommodate the individual exists: see Wall v. The Lippé Group 2008 HRTO 50 and Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 2004 BCHRT 225, 51 C.H.R.R. D/68. It is well-established in human rights law that the duty to accommodate encompasses two components: 1. procedural (that being the process whereby the accommodation was considered) and 2. substantive (the accommodation that was achieved or the reasons for lack of accommodation), see: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) at paras. 62-68.

29In the present case, the respondent was obliged to obtain more information about the situation surrounding the applicant and Scooter’s barking. The respondent’s duty to make inquiries about the applicant’s disability-related needs cannot be satisfied by the respondent’s own perceptions and assumptions about the applicant’s condition: see for example Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, 1982 CanLII 15, 132 D.L.R. (3d) 14 (S.C.C.) at para. 21, and Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15, at para. 226. As such, Ms. Werner should not have, merely on the basis of her own preconceived notions, automatically discounted Ms. LePage’s assertion that Scooter was a service dog to help the applicant.

30I find that, upon learning that the dog assisted the applicant in relation to his hearing loss, Ms. Werner was obligated to ask for further information with respect to the dog and the applicant’s disability-related needs. I conclude that the respondent’s failure to make adequate inquiries created the situation where the respondent failed to understand that one of the alleged disturbances caused by Scooter, namely the loud barking, was a behaviour associated with the disability-related assistance provided by the dog to the applicant. The respondent’s failure to make proper inquiries about the dog and if and how the dog’s barking served the applicant’s disability-related needs constitutes a form of disability discrimination against the applicant.

31Although I have found that the respondent violated the applicant’s right by failing to make proper inquiries regarding the applicant’s disability-related needs, I do not find the contravention extends beyond an obligation to make inquiries. Based on the evidence, I conclude that the respondent would have sought to terminate the applicant’s tenancy even if it had not considered Scooter’s barking as a factor in its decision to terminate.

32The oral and documentary evidence clearly indicates that there were numerous complaints with respect to Ms. LePage’s behaviour and that these concerns were generally separate from the concerns regarding Scooter (expect for the allegation that she allowed Scooter to run in the hallways). In fact, the evidence indicates that the situation between Ms. LePage and the other tenants was very unpleasant and rapidly deteriorating. Also, there clearly were other issues regarding Scooter’s behaviour that do not appear to be related to assisting with the applicant’s disability-related needs (e.g. running in the halls and jumping on people), which lead to the conclusion that the respondent would likely have initiated termination proceedings even after making the necessary inquiries about the barking. Therefore, even if the respondent had undertaken a proper investigation regarding the applicant’s disability-related needs and thereby ascertained that Scooter provided disability support to the applicant, I find the respondent nevertheless could properly have considered termination of the tenancy due to other behaviour concerns in relation to Ms. LePage and Scooter.

33It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252. Although the respondent could properly have considered termination of the applicant’s tenancy based on behaviours unrelated to his disability-related needs, the evidence shows that Scooter’s barking was a factor in its decision to initiate termination and that the respondent failed to make appropriate inquiries to ensure it met its obligations under the Code. In conclusion, I find that the respondent infringed the applicant’s right to be free of discrimination in housing when it failed to inquire about the applicant’s disability-related needs and cited Scooter’s barking as a disruption amongst the list of various disruptions it relied upon to seek early termination of the applicant’s tenancy.

REMEDY

34The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, which provides that the Tribunal has the discretion to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and the power to direct any party to do anything that promotes compliance with the Code.

Claim for Expenses

35The applicant seeks compensation for moving expenses ($2,000) and rent expenses ($15,000).

36Based on my earlier conclusion that the respondent would likely have initiated termination of the applicant’s tenancy even if it had not considered Scooter’s barking as a factor, I find the applicant is not entitled to compensation for these expenses. Moreover, it must be recalled that the applicant decided not to continue with his tenancy and did not respond to the Notice or present his side to the Landlord and Tenant Board. As such, the applicant has not made out a claim that he was forced to move out of the building because of the disability discrimination and therefore is not entitled to be reimbursed for any moving and rent costs. In addition, it is also noteworthy that the applicant did not adduce any evidence regarding the expenses claimed.

Dignity, Feelings and Self-Respect Damages

37The applicant seeks compensation for stress on the dog ($5,000) and stress on himself and his roommate ($10,000 each).

38While it was clear from the applicant’s evidence that he was upset and angry by the Notice, it appears he was more troubled by the attack on the dog’s character and less concerned with the respondent’s failure to address his disability-related needs. An order for compensaton for injury to dignity, feelings and self-respect is a discretionary award. I conclude that, in the particular circumstances of this case, the amount sought by the applicant for his injured feelings is not appropriate. Further, the Tribunal generally does not provide compensation to witnesses.

39The Divisional Court in ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425 (Ont. Sup. Ct.), recently confirmed that a human rights damages award for the loss arising out of the infringement includes compensation “for the intrinsic value of the infringement of rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization” at para. 148. In light of the fact that a discriminatory factor was one, amongst many other, serious concerns leading to the decision to issue the termination of Notice, consideration should be given to an award for recognition of the inherent right to be free from discrimination. I find that a nominal award to compensate for the loss of the inherent right to be free from discrimination is appropriate in the particular circumstances of this case.

40The evidence indicates that the applicant participated in retaliating against the elderly tenant who was assumed to be the main complainant in the Notice. The applicant acknowledges that he read Ms. LePage’s letter, he agreed with its sentiment and he, in fact, effectively signed off on the letter as “Scooter”. A plain reading of the letter reveals a vindictive and harassing tone and as such, I find that a nominal award of $200 in recognition of the inherent right to be free of discrimination is appropriate in the unusual circumstances of this case.

Directions to promote Code compliance

41It is well-established in human rights law that any order intended to promote Code rights and policy “…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”, see Giguere v. Popeye Restaurant, [2008] 2008 HRTO 2 at para. 91.

42The facts of this case clearly indicate that the respondent was unaware of its human rights obligations. In these circumstances and in order to promote future compliance with the Code, it appears it would be helpful for the respondent to secure a better understanding of disability issues, human rights law, and its obligations with respect to the duty to accommodate. As such, I order that, within three months of this decision, the respondent retain the services of a consultant with human rights expertise in order to provide it with training with respect to its obligations under the Code and, in particular, the duty to accommodate tenants with disabilities.

ORDER

43In conclusion, the Tribunal orders:

(a) The respondent shall pay the applicant $200 as damages in recognition of the inherent right to be free from discrimination; and

(b) Within three months of the date of this Decision, the respondent shall retain at its own expense a qualified human rights consultant to provide it with training with respect to its obligations under the Code and, in particular, the duty to accommodate tenants with disabilities.