Hill-LeClair v. Booth, 2009 HRTO 1629

Human Rights Tribunal of Ontario

B E T W E E N:

Christine Hill-LeClair

Applicant

-and-

Joseph Booth

Respondent

Decision

Adjudicator: Faisal Bhabha

Date: October 13, 2009

Citation: 2009 HRTO 1629

Indexed as: Hill-LeClair v. Booth

Appearances

Christine Hill-LeClair, Applicant ) John No, Counsel

Joseph Booth, Respondent ) No one appearing

Introduction

1The applicant, Christine Hill-LeClair, resided in shared accommodation owned and occupied by her landlord, the respondent Joseph Booth, in Trenton between September 1, 2008 and the end of November, 2008. She filed an Application with the Tribunal on December 31, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, alleging discrimination based on sex, sexual harassment and sexual solicitation in housing.

2In her Application, the applicant alleged that during the period that she and her four-year old son occupied two rooms in the respondent’s home, she was subjected to repeated acts of sexual solicitation, harassment, unwanted touching and unauthorized intrusions into her work and personal life by the respondent. Notwithstanding her consistent refusals, the applicant alleged that the respondent landlord’s conduct escalated with time. When she confronted him directly and made clear she would not tolerate such conduct, she alleged he turned vindictive and made her life unbearable, forcing her to move out.

3The respondent did not file a Response or participate in these proceedings. On March 6, 2009, he contacted the Tribunal to advise that, while he had received the Notice of Application, he was at the time serving in the military in New Brunswick and was unable to print the Response Form in order to complete and file it. The Tribunal agreed to fax the respondent a copy of the Response Form, which it did on March 6, 2009, using the fax number provided by the respondent. The respondent agreed to complete and return the Response by March 9, 2009. No Response was filed.

4In an Interim Decision dated March 25, 2009, 2009 HRTO 349 (the “March Interim Decision”), the Tribunal noted that no Response had been filed and granted the respondent additional time to file it. The Tribunal cautioned the respondent that if the Response was not filed by April 8, 2009, it could result in the Tribunal taking any number of steps described in Rule 5.5, including proceeding without further notice to the respondent, deeming him to have accepted all of the allegations and waiving his right to participate, and deciding the matter only on the material filed. The March Interim Decision was mailed to the respondent at the address he provided in New Brunswick. The respondent made no further contact with the Tribunal.

5In a second Interim Decision dated April 29, 2009, 2009 HRTO 536 (the “April Interim Decision”), the Tribunal made the following order:

a. The respondent is deemed to have accepted all of the allegations set out in the Application;

b. The respondent is deemed to have waived all rights to notice or participation in these proceedings; and

c. No later than two weeks before the date set for the hearing, the applicant may submit any additional document she wishes the Tribunal to consider in deciding this Application.

d. The Registrar will schedule a half-day hearing in this matter.

6A Confirmation of Hearing, dated May 19, 2009, was mailed to the applicant’s counsel and to the respondent at the military address in New Brunswick that he had earlier provided to the Tribunal, scheduling the hearing for August 19, 2009. Neither party requested an adjournment.

7In accordance with the March and April Interim Decisions, I find that the respondent was served with the Application and was afforded an opportunity to file a Response. I also find, consistent with the April Interim Decision, that the respondent is deemed to have accepted all of the facts alleged in the Application and to have waived any right to participate in the proceedings.

8An oral hearing was convened on August 19, 2009 in Kingston.

Facts

9No additional oral evidence was sought with respect to the allegations as pleaded in the Application, which are accepted as fact. The applicant provided additional oral evidence with respect to the impact of the harassment. There were no other witnesses. The only documentary evidence before the Tribunal are documents filed with the Application.

Background

10The applicant resides with her young son in Trenton, Ontario. At the time of the events described in the Application, she was employed as a server at a local restaurant.

11The respondent is the owner of a residential property located in Trenton, where he resided at the time of the events at issue in this case. He subsequently enlisted in the Canadian Armed Forces and moved to New Brunswick for training.

12On September 1, 2008, the applicant and her son moved into the respondent’s home, where they had an agreement to rent two rooms for $500.00 per month, paid in two equal instalments at the beginning and in the middle of the month. Rent of the two rooms included use of a kitchen and bathroom shared with the respondent and two other tenants.

Sexual solicitation, comments, touching

13Approximately one week after the applicant and her son moved in to the property, the respondent asked the applicant if she was interested in beginning a romantic relationship with him. She declined.

14Despite the initial rejection, the respondent persisted in his solicitation of the applicant. On multiple occasions, he invited her to watch a movie with him, with promises of a foot or shoulder massage. He often found reasons to touch her, placing his hands on her hips as he would pass by her in the house. The respondent also tried to initiate conversations with the applicant about her sexual preferences and practices. The respondent frequently made sexualised comments about the applicant’s physical appearance. In one instance, the respondent surprised her from behind while she was folding laundry in her room. He grabbed her, lifted her, threw her on the bed and proceeded to tickle her, over her objections. He only ceased when she fled the room.

15The applicant maintained that she declined every request, rejected every offer and resisted every attempt by the respondent to engage in sexual or romantic activities or conversations with her. She told him on a daily basis that his conduct was unwelcome and inappropriate. Rather than abating, the respondent’s advances escalated, and he became increasingly invasive and overbearing.

Inappropriate expectations and false representations

16Shortly after the applicant took up occupancy in the respondent’s property, he began acting as though they were in a conjugal relationship. He expected her to inform him of her plans and would sulk when she was unavailable; when she cooked for herself and her son, he expected to be invited to join them; on another occasion, when she said she had plans with a friend and declined to stay home and make jam with the respondent, he reacted like a spurned lover.

17The applicant learned from the neighbours that they were under the impression she was dating the respondent, apparently based on his representations to that effect. She believed the respondent took liberties entering her bedroom without her consent when she was not present. On one occasion, she returned home from work to discover a lighted scented candle in her room. When confronted, the respondent confirmed that he had placed the candle there. Even after the applicant put a lock on her door, she continued to suspect that the respondent entered her room without her consent. Her suspicions were confirmed when he accurately described a piece of lingerie that she kept in a drawer in her dresser.

Spying and propositioning

18On October 31, 2008, the applicant went to work for the evening shift. It was Halloween and many of the customers were in costume. During her shift, she noticed a man sitting alone at a table, staring at her. The man was wearing a robe and a full mask over his head and face. He sat alone at his table for about three hours and then left. The applicant believed the man to be the respondent because she recognized the robe as his housecoat. The man left the restaurant before the applicant finished her shift. The two never spoke at the restaurant.

19That night, when the applicant returned home, she discovered an envelope on her door. A note on the envelope stated, “You can come wake me up if you want. I had fun tonight. Thank James [sic].” She also found a novelty condom inside the envelope. Photocopies of both the note and the condom packaging were admitted into evidence. The applicant testified that she understood this note and condom to be an overt sexual proposition.

20The Halloween incident was not the first time the respondent had left solicitous messages for the applicant. On other occasions, she had found notes pinned to her door with invitations such as, “If you want you can wake me up when [your son] goes to bed. Hint – Hint HA HA”, and “Come down stairs and wake me up when you get home. Thanks James.” Copies of both of these notes were admitted into evidence.

21The applicant testified that the Halloween incident terrified her. She felt that the respondent’s inappropriate and creepy behaviour had escalated to an unbearable point. She also feared him; she knew him to be short-tempered and she had seen his gun cabinet in the basement, adorned with a Nazi flag. She now saw his behaviour as more than disrespectful and annoying—it frightened her.

22The next day, the applicant phoned her friend to discuss the note and condom. While on the phone, she heard the respondent coming up the stairs. She deliberately spoke loudly, hoping the respondent would hear her complaints. She subsequently noticed that the condom and note disappeared from her room. She later retrieved them from the respondent’s room.

Accusations and eviction

23A few days after Halloween, the respondent accused the applicant of causing damage to the house’s plumbing system. Frustrated by the accusation (which she felt was baseless) and events up to that point, she confronted him about his conduct, characterizing it as sexual harassment. The respondent’s behaviour, however, did not change. The applicant testified that she resolved to no longer tolerate his advances, comments and touching.

24On November 14, 2008, the respondent provided the applicant an eviction notice, giving her until November 30, 2008 to move out. The reason cited was non-payment of rent, apparently for not having paid the full $500.00 at the beginning of the month, notwithstanding the agreement to pay the rent in equal instalments twice monthly. By this time, the applicant was very uncomfortable staying in the house. Her son was terrified of the respondent, who frequently shouted at him, and the applicant no longer felt it was safe. They began sleeping at her parents’ apartment or with friends, while she prepared her things to move out of the respondent’s house at the end of the month.

25Again, the respondent acted like a spurned lover in response to the applicant’s moving preparations. She believed the respondent had not truly intended to evict her, but rather hoped she would return to him and beg for his forgiveness. The basis for her belief was that she was aware that, as a shared accommodation, her occupancy was not covered by the Residential Tenancies Act and had the respondent truly wished to evict her, he could have done so for no reason and with no notice. In fact, she testified that in September 2008, she witnessed the respondent evict two other tenants without any notice.

26Part of the reason the applicant testified she had been initially reluctant to openly confront the respondent about his sexual harassment was because she feared summary eviction. As a single mother of a young child, stable housing was of critical importance. For the sake of her son, who was enrolled in school nearby, she tried to cope with the indignity of daily solicitation and harassment by the respondent out of fear of eviction. For this reason, she believed the eviction to be a further attempt by the respondent to coerce her into an intimate relationship.

27On November 26, 2008, the respondent told the applicant that the police had attended at the house enquiring about her. He said they had wanted to search her room and would return with a warrant. The applicant contacted the local Ontario Provincial Police (OPP) detachment and was informed that the police had no interest in her and that there was no search warrant issued in relation to her. Later that day, the respondent contacted the applicant’s employer with the same story; he said the police were at his house looking for the applicant. The employer immediately notified the applicant, who rushed home with her father only to find the respondent alone at home. He told her that the police had just left. Again, she visited the local OPP station, where she was reassured that the police had no interest in her.

28On the day that the applicant attended at the house to move her belongings out, the respondent blocked the driveway with his vehicle and refused to facilitate her move out. Only after the applicant called the police did the respondent grant passage.

Impact

29The evidence establishes that the impact of these events on the applicant has been profound. As a single mother of a young child, constrained by limited financial resources and a family without the money to assist her, she was in a precarious position. She had rented the rooms in the respondent’s home because the rent was affordable and the location was convenient for her work and her son’s school. She testified that she desperately wanted to make a safe and secure home for herself and her son.

30While the respondent’s advances began as an annoyance that threatened to disrupt her home life, they escalated to the point of creating a significant dilemma for her. She felt torn between her desire, on the one hand, to provide a safe and secure home for her child, who had already been uprooted a lot in his short life; and on the other hand, the indignity of remaining within the uncomfortable and potentially dangerous reach of the respondent’s persistent advances. The evidence establishes that this dilemma caused the applicant to feel trapped and powerless, and that she often cried from frustration.

31The evidence further establishes that the respondent’s conduct made the applicant feel completely devalued and degraded as a person and as a woman. She never authorized the respondent to speak openly with her about sex, which was something she was not at all comfortable with. She never invited his comments about her body or appearance, nor gave the impression that such comments would be welcome. The respondent ignored her protests, making her feel even more insignificant and powerless.

Analysis and Decision

32In this section, I apply the facts to the law and explain my finding that the respondent sexually solicited and harassed the applicant, and provide a remedial order. First, however, I deal with a threshold issue regarding the applicability of the Code to the tenancy arrangement between the parties.

Relevant Code provisions

33The following provisions of the Code are relevant to my determination of the issues in this case:

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

(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, family status, disability or the receipt of public assistance.

7. (1) Every person who occupies accommodation has a right to freedom from harassment because of sex by the landlord or agent of the landlord or by an occupant of the same building.

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

21.(1) The right under section 2 to equal treatment with respect to the occupancy of residential accommodation without discrimination is not infringed by discrimination where the residential accommodation is in a dwelling in which the owner or his or her family reside if the occupant or occupants of the residential accommodation are required to share a bathroom or kitchen facility with the owner or family of the owner.

Applicability of the Code

34In the April Interim Decision, the Tribunal invited the applicant to prepare submissions on the applicability of section 21 of the Code, which exempts owners of shared accommodation from complying with section 2 of the Code.

35Counsel for the applicant argued that the exemption in section 21(1) does not apply to the circumstances of this case. He urged me to interpret section 2(1) and 2(2) as creating two independent, free-standing rights. The first protects potential tenants from being discriminated against in their access to accommodation, while the second protects existing tenants from being harassed by their landlords. Counsel asked me to find that the exemption in section 21(1) applies only to section 2(1), and not to section 2(2). In support of this interpretation, counsel argued that the section 21(1) exemption must be read in the light of section 7, which protects “every person who occupies accommodation” from sexual harassment. According to counsel, extending the exemption to section 2(2) would create an apparent conflict with section 7, and would leave landlords in shared accommodation free to harass tenants on the basis of any Code ground other than sex.

36Counsel further argued that the language, “equal treatment with respect to the occupancy of accommodation” implies an exemption only with respect to accessing accommodation, not with respect to the right to be free from harassment by the landlord. Counsel submitted that the Code rightly provides landlords of shared accommodations a justification to select who they wish to live with, even if it involves discriminating on the basis of a Code ground, but that there is no parallel rationale to extending the exemption to the right to be free from harassment. According to counsel, once a landlord has accepted a tenant into shared accommodation, there can be no basis in policy or law to permit that landlord to harass the tenant on the basis of a protected ground. The explicit reference to “harassment” in section 2(2) is notably absent from section 21(1), which references only the right contained in section 2(1) to “equal treatment with respect to the occupancy of residential accommodation without discrimination”, with no mention of harassment. Counsel argued that this clear statutory language, in conjunction with the unqualified prohibition on sexual harassment contained in section 7(1), support a narrow interpretation of section 21(1) as only applying to section 2(1). Counsel further relied on the long-standing principle that human rights be interpreted broadly, while defences to discrimination be interpreted narrowly: Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 S.C.R. at para. 28.

37Although applicant counsel’s argument is appealing, I find that in the circumstances of this case it is not necessary for me to decide on the relationship between sections 21(1) and 2(1) of the Code. I note there may be cases in which the applicability of section 2 would be a real issue, such as where harassment is alleged in a shared accommodation setting on the basis of a protected ground other than sex. It should be left to the Tribunal to consider that issue in the specific legal and factual circumstances of an appropriate case. In the present case, I am satisfied that the Code establishes the Tribunal’s jurisdiction to consider the applicant’s allegations within the context of section 7.

Sexual solicitation and harassment

38It is clear on the evidence that the respondent violated the applicant’s rights under the Code. He engaged in a pattern of vexatious conduct that he ought reasonably to have known to be unwelcome to the applicant. This conduct amounted to harassment on the basis of sex within the meaning of section 7(1), and sexual solicitation within the meaning of section 7(3).

39Courts and tribunals have long recognized that sexual harassment is more than an affront to dignity; it is an abuse of power: Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 (SCC); Sanford v. Koop (2005), HRTO 53. Landlords are in a position of unique authority over their tenants, especially in a shared living setting. They control the use and enjoyment of the tenant’s home life and wield the ultimate power to evict—in some instances, like this one, summarily.

40A landlord must clearly understand that a tenancy agreement does not amount to a licence to solicit sex, whether in the form of actions, words, conduct or innuendo. Tenants have an absolute right to be free from all forms of sexual harassment in accommodation.

41I find that not only did the harassment occur in many different forms and on many different occasions, but it was repeated over and above the applicant’s clear objections, on virtually a daily basis for most of her three-month tenancy. I further find that the eviction, whether sincere or not, constituted a reprisal for the applicant having rejected the respondent’s solicitation and harassment.

Remedy

42The applicant requested an award of general damages and a public interest remedy. With respect to monetary compensation, the applicant asked that the Tribunal award $35,000. In support of this position, counsel submitted that the figure is supported by the jurisprudence of the Tribunal. The applicant’s counsel argued that this case is on par with Sanford v. Koop, supra, which was decided under the old Code, and where the Tribunal awarded a total of $35,000, representing $25,000 in general damages plus $10,000 for mental anguish. Under the amended Code, there is no longer a separate head of damages for mental anguish. Instead, factors such injury to dignity, hurt feelings and wilful or reckless conduct, amongst others, are considered within the rubric of general damages.

43There are numerous considerations to bear in mind in determining the appropriate award of monetary compensation in this case. First, the applicant was vulnerable. Beyond the power imbalance inherent in the landlord-tenant relationship, especially in shared accommodations, the applicant was uniquely vulnerable as a young, single mother of a young child. The respondent exercised significant control over the applicant’s life, and exploited the opportunity to flex his power. This was demonstrated when he issued a 15-day eviction notice, which was used as a means of control. It was also evident when he pretended to phone the police on the applicant, sabotaged her work by lying to her employer, misrepresented their relationship to the neighbour and blocked her car on the day she was moving out. All of these measures were demonstrative of the respondent’s power over the applicant, and of her vulnerability in relation to him.

44The solicitous and harassing conduct occurred in the home, a place where one reasonably expects privacy, safety and freedom. The respondent poisoned the home with persistent sexual advances, unwanted touching, unwelcome comments and unauthorized intrusions into the applicant’s personal life. The applicant testified that he was a threatening presence: he kept guns and hung a Nazi flag in his basement, which the applicant felt created an atmosphere of substantial insecurity. That all of this occurred in the presence of the applicant’s four year-old son adds a further degree of harm to the conduct. Moreover, the harassment extended beyond the home life: the respondent misrepresented his relationship with the applicant to neighbours, intruded on her work life and fabricated reports about her to the police.

45A further consideration is that the harassment went beyond comments and innuendo, and included unwanted touching. In addition to brushing up against the applicant, there was at least one instance of egregious unwanted touching, the tickling incident, when the respondent snuck up from behind, threw the applicant on the bed and proceeded to forcefully tickle her without her consent and over her objections. This had a demonstrable effect on the applicant, who felt trapped and objectified, and powerless to change her situation.

46Finally, it is important to note that the focus of the analysis in determining appropriate remedies is the impact of the breach on the victim and future compliance with the Code. Remedies under the Code are intended to make victims of discrimination and harassment whole, not to punish perpetrators. The impact of sexual harassment by a landlord can be debilitating, and the effects can be long-term and profound. Despite the fact that the applicant did not adduce any medical evidence or expert testimony concerning the short and long term impact of the harassment on her health, I am satisfied nonetheless that the respondent’s mistreatment had a negative psychological and emotional impact on the applicant.

47There is no set formula for calculating appropriate monetary compensation for sexual harassment by a landlord in the context of a shared rental housing arrangement. Historically, sexual harassment under human rights statutes has tended to attract a comparatively higher quantum of damages than simple discrimination, see: Domingues v. Fortino, 2007 HRTO 19, Sanford v. Koop, supra; Colvin v. Gillies Hillcrest Variety, 2004 HRTO 3. This can be rationalized by the vulnerability of victims, the heightened personal impact and the more severe dignity interests implicated. I find that, in a landlord-tenant relationship in a gendered, shared housing setting, the power imbalance is exacerbated and the vulnerability of the victim is correspondingly heightened. On the basis of the forgoing, and considering the evidence in this matter, it is appropriate to award $25,000 in monetary compensation for injury to dignity, feelings and self-respect caused by the harassment and reprisal.

48The applicant also seeks a public interest remedy in the form of mandatory human rights training for the respondent. The Tribunal has broad remedial power to ensure future compliance with the Code. I am not persuaded that training in this case would serve a public interest given the fact that the respondent is apparently no longer providing rental housing, and the fact that he has left Ontario indefinitely.

Order

49In view of the above, the Tribunal orders the following:

(a) Within 10 days of this Order, the respondent, John Booth, shall pay to the applicant, Christine Hill-LeClair, monetary compensation in the amount of $25,000 for infringement of the Code;

(b) The respondent shall pay the applicant pre-judgment interest running from the date of the Application, and post-judgment interest running from 10 days following the date of this Decision.